With hearings to confirm Connecticut Associate Justice Andrew McDonald as the new chief justice expected later this month, he may have to overcome hurdles tied to his resume and his close relationship with Democratic Gov. Dannel Malloy.
McDonald has a professional relationship with the governor that dates back to when Malloy was the Stamford mayor and McDonald was the corporation counsel. Some argue that McDonald should not be elevated to chief justice because he has no superior or appellate court experience, and say the friendship between Malloy and McDonald was the only reason the governor nominated him to replace retiring Chief Justice Chase Rogers.
One of McDonald’s biggest critics is Republican gubernatorial candidate Timothy Herbst.
“In my opinion there is no gray area. You have excellent associate justices of the court that are just more qualified to be chief justice,” said Herbst, a former Trumbull first selectman. “If McDonald was not Malloy’s best friend and [former] top political adviser, would we be having this conversation right now? Let’s call this for what it is, and that is political patronage at its worst.”
Herbst continued: “If [former Republican Govs.] John Rowland or Jodi Rell appointed their chief legal counsel and best friend to the Supreme Court with no judicial experience, they would have been rightly criticized by the Democrats in the Legislature.”
McDonald, who is the second-longest serving associate justice currently on the bench with five years of experience, declined to be interviewed for this report. McDonald also practiced law for nearly three decades, and was a partner with Pullman & Comley.
Malloy’s office did not immediately respond to requests for comment.
Another vocal voice in the conservative drumbeat against McDonald is Peter Wolfgang, executive director of the pro-life Family Institute of Connecticut.
Wolfgang said he is less concerned with McDonald’s close relationship with Malloy, and more interested in how he’s voted over the years.
Wolfgang cites two examples: McDonald’s support as a state senator in 2009 for a bill that would have stripped Catholic bishops and priests of financial authority over their own churches, and his vote as a justice with the 4-3 majority to throw out the state’s death penalty. The bill was eventually withdrawn.
“He seems to have a pattern of putting his own personal agenda above the law,” said Wolfgang, who added his organization launched an email campaign to pressure the Joint Committee on the Judiciary to reject McDonald.
At the time, Wolfgang said, some critics believed McDonald’s support of the bill was payback for the church’s opposition to same-sex marriage.
McDonald is openly gay, but Wolfgang, whose organization led the fight against same-sex marriage in the state, said the justice’s sexual orientation has nothing to do with the opposition.
On the death penalty, both Herbst and Wolfgang said McDonald was chief legal counsel to Malloy, where he worked with the governor and legislators on language that ultimately repealed the death penalty.
“At the time, Malloy told us that the repeal would not apply to those already on death row, but only in cases going forward,” Herbst said. “Then, after the law passed, McDonald, while sitting on the Supreme Court, sits and hears a case on the murderers in the Cheshire home invasion case. … He should have recused himself due to his previous crafting of the legislation.”
McDonald has strong support among Democrats in the Legislature. That includes Sen. Terry Gerratana and Rep. Steven Stafstrom Jr., both members of the Joint Committee on the Judiciary.
“Justice McDonald’s perspective and background working with people here in the Legislature and in the court system is solid,” Gerratana said.
Stafstrom, also an attorney with Pullman & Comley, took aim at Herbst’s claim that McDonald was nominated because he is a close ally of Malloy.
“Justice McDonald has been serving as a distinguished member of the court for several years and it’s insulting to say that an associate justice of the Supreme Court would be taking any direction from the governor,” Stafstrom said. “We have separations of power and the role of the judiciary is different from the executive branch of government.”
Stafstrom added he would have expected a gubernatorial candidate to know the justices don’t take orders from the governor.
Stafstrom said concerns about issues like the death penalty “are fair areas of inquiry. They will be discussed during the public hearing process.” Stafstrom did not elaborate on the specific concerns on McDonald’s record raised by Herbst and Wolfgang.
While hearings on McDonald’s nomination are expected to begin later this month, a vote by the 45-member Joint Committee on the Judiciary on confirmation is not expected until March.