Historically blue Connecticut’s opportunity to confirm the nation’s first openly gay Supreme Court chief justice is on the thinnest of lines this week, having just passed the state House of Representatives by a 75-74 vote.
Signs that Democrats and Republicans have drawn battle lines reminiscent of national partisan conflicts began with a hearing of the state’s Judiciary Committee Feb. 26, when members questioned McDonald for more than 12 hours before Republicans unanimously opposed his nomination and effected a tie vote, 20-20, triggering a surprise “unfavorable” recommendation to the full Legislature.
On Monday, the House debated part of the morning and into the late afternoon to arrive at passage by a single vote. The next hurdle for McDonald supporters will be the floor of the 36-member state Senate, where an expected recusal announced last week by Sen. Gayle Slossberg puts the Democrats down by the same margin, imperiling the nomination.
State Sen. President Pro Tempore Martin Looney, a partner at Keyes & Looney in Branford, said in an interview that he expects the Senate to take up the McDonald nomination a week after the House vote, or around March 19, as a political action group has begun running ads in favor of confirmation. He said that, despite claims to the contrary, Republicans have clearly politicized the debate.
“It was an entirely partisan vote,” Looney said of the Judiciary Committee’s Feb. 26 hearing. “I think what we need to look at is the endorsement of Justice McDonald’s candidacy by the major leaders of the bar and major leaders of law firms and deans of law schools in the state. We should not see a politicization of our process, and the fact that Justice McDonald has had a remarkable, stunning record in his five years as justice should stand on its merits.”
The state Senate Republican President Pro Tempore Len Fasano, a partner at Fasano Ippolito & Lee in New Haven, has said he is offended by Democrats’ assertion that Republicans are banding together to oppose McDonald because he is gay, and said the objections are substantive. “There is no unified position,” Fasano said. “I think people are reviewing the nature of [McDonald's] decisions. The Republicans haven’t even talked about it, frankly. People are reviewing the information that’s pertinent to the decision. We haven’t caucused about it. We haven’t talked about it in a substantive fashion.”
Nonetheless, the divide between the parties speaks for itself, with the exception of a dissent on the Judiciary Committee by state Rep. Minnie Gonzalez and Slossberg’s announcement that she will recuse herself. Slossberg, who practiced law at Cleary Gottlieb Steen & Hamilton in New York, based her decision in part on an alleged incident in 2012, when McDonald was serving as chief legal counsel to Gov. Dannel Malloy, in which she claims McDonald screamed at her during a meeting at the state Capitol about Democrat-supported legislation on campaign finance reform.
In an affidavit in 2014, Slossberg claimed McDonald “started screaming directly at me at the top of his lungs in a very personal and shocking manner.” She said McDonald’s “lip was quivering” and that “it was clear to me that his conduct had nothing to do with the legislative issues being addressed but with his personal animus toward me.” Slosssberg was attempting to get McDonald to recuse from a case in which her husband had won a monetary settlement against an insurance company at trial. The case was appealed to the Supreme Court, and the court ruled unanimously in favor of the insurance company. McDonald did not recuse.
Exactly what McDonald said to Slossberg at the 2012 meeting, and vice versa, has not been recalled by people who were in attendance and spoke both on and off the record.
Deputy Speaker of the House Russ Morin, who co-chaired the Government Administration and Elections Committee at the time with Slossberg, did not specifically recall the meeting in question. Though other sources have placed him there, Slossberg contends that Morin was not present.
“If I was at a meeting where people were absolutely going at each other, I would absolutely remember that,” Morin said. “I honestly don’t remember that occurring. I also remember working with Andrew on various bills and I don’t remember him doing any of that.”
Morin said he has always seen Slossberg as a tough negotiator. “I had the great disadvantage of coming in brand new, having never served on that committee, and going in as her co-chair,” he recalled. “She had such great institutional knowledge, and I had to work that much harder to try to keep up with her. I remember her being pretty strong herself, but not unprofessional. She’s a tough woman. You have to know your subject matter if you’re going to talk to her.”
Press releases from Morin’s office from that period show he was a leader on the issue at hand, which involved a Democratic-led bill that had passed the House to make certain campaign finance reforms.
Three additional attendees, all Democrats, who requested anonymity, but affirmed being at the meeting, said there was no yelling. “There’s no question that there was a back and forth about the issue, and Gayle shot right back at Andrew with her responses,” one said. “Who started the conversation? I don’t even remember. It wasn’t guns blazing.”
“It was heated between both of them, and there were raised voices, but there was no victim,” another said.
Reached Monday by phone, Slossberg said she stands by her affidavit. “I submitted an affidavit to the Connecticut Supreme Court. I take that very seriously,” Slossberg said, “Russ Morin was not at that meeting.” She said she had no further comment about the McDonald nomination.
Robert Mitchell of Mitchell & Sheahan, who worked as a law partner with McDonald for 10 years at Pullman & Comley, said Democrats should be exploring the opportunity to talk with Slossberg and see if the issue can be resolved. “I think there’s been a real fallback with the Democrats in not putting more pressure on Mrs. Slossberg,” he said. “I have little hope that it’s going to change in a week, but I do have some hope that some Republicans will put aside their differences and vote for confirmation. I think Andrew McDonald more than deserves it, and I think he would be a noteworthy chief justice.”
Looney said he has not talked directly with Slossberg and that he was surprised by her decision to recuse, along with her announcement days later that she would not seek re-election. “I am hoping and expecting from reports I’ve heard that the house vote will be bipartisan,” he said, “and that will be a great credit to the House if that turns out to be the case.”
Nonetheless Monday’s debate in the House had its lines seemingly drawn, as many Republicans referred to McDonald as an “activist judge,” announcing opposition to confirmation and deriding his participation in Connecticut’s abolition of the death penalty.
“This looks like the kind of poisoning of relationships that seems to have happened broadly at the national level, making the federal government in many ways not functional,” Looney said. “I’m hoping that will not happen here.”
As Monday’s meeting of the full House of Representatives went into extended deliberations, state Rep. Steven Stafstrom of Bridgeport, an attorney at Pullman & Comley who has organized an advertising political action committee in support of McDonald, addressed many of his colleagues who have objected to McDonald over his decision not to recuse himself in the Santiago death-penalty case that resulted in the Supreme Court voting to make the punishment illegal. “I counted over two hours of questioning on Santiago alone,” Stafstrom said. “The rules require that a judge not use disqualification to avoid cases that present difficulties, or controversial or unpopular opinions,” he said. “I think anyone who sat on Santiago knew it was a controversial issue.”
In a four-page letter to legislators, legal ethics professor and former UConn School of Law Associate Dean Leslie C. Levin wrote that McDonald’s decision not to recuse himself in the Santiago death penalty case was correct. She quoted U.S. Supreme Court Justice William Rehnquist, in part, who said “[s]ince most juistices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions which would influence them” in interpreting the Constitution.
“We want legislators to speak freely as advocates for new laws when they hold legislative positions,” Levin wrote. “If the judicial disqualification rules were interpreted as some senators suggested, legislators who aspire to become judges would either become timid about speaking out on important issues or would be disqualified from hearing large swaths of cases. This would negatively affect both the legislative process and our justice system.”
With the House vote in the books, the Senate could take up the nomination as early as next Monday.