UPDATED: McDonald Nomination Fails in State Senate, 19-16

After more than four hours of debate on the state Senate floor March 27, the nomination of Connecticut Supreme Court Associate Justice Andrew McDonald to be chief justice failed by a vote of 19 to 16, following weeks of controversy and political fighting between state Democrats and Republicans.

Democrat Joan Hartley joined Republicans in opposing McDonald’s nomination, which had become what some called “a political football,” and fellow Democrat Gayle Slossberg recused herself from the vote, as expected per her announcement.

McDonald remains an associate justice on the state’s Supreme Court, and Gov. Dannel Malloy’s office said Friday that the question as to whether the governor will attempt to nominate McDonald again is still on the table.

“Senate Democrats have requested that Justice McDonald’s nomination be reconsidered and that question remains open,” said Malloy’s Director of Communications Kelly Donnelly in a statement emailed to the Connecticut Law Tribune Friday. “In the meantime, we continue to review and consider all options on the table.”

Connecticut General Statutes Section 2-43 directs the governor to name a new nominee within five days of notice that a nominee has failed to gain approval. That five days is directory, not mandatory, meaning Malloy may take longer than the prescribed period. The governor had not yet received formal notice Friday that the nomination failed, as the Senate’s time for reconsideration had not yet expired.

Prior to last Tuesday’s vote, there were signs McDonald’s chances were bleak, with Republican legislators united in opposition to the historic nomination.

At the 11th hour Monday, amid rumblings that a deal could be in the works to offer Republican lawmakers a high-court nominee from their own party, the GOP cemented its antipathy, informing Gov. Dannel Malloy that it will vote as a block to deny confirmation.

Malloy held a special press conference Monday evening acknowledging that Senate Republican President Pro Tempore Len Fasano had informed him of its intention to reject McDonald today.

“Perhaps all 18 senators weren’t directly told how to vote, but I think it strains credulity to say that all 18 people in that caucus did their homework for weeks and weeks, and all 18 just happened to arrive at the same conclusion,” Malloy said. “What are the odds?”

McDonald, who would be the nation’s first openly gay chief justice, if confirmed, faced an unprecedented partisan war since his nomination by the governor, who is his longtime friend and former official client. Republicans on the state’s Joint Committee on the Judiciary cast the first stone Feb. 26 when they questioned McDonald for nearly 12 hours before reaching what appeared to be a foregone conclusion, voting “no” on the nominee. The resulting 20-20 vote mandated a surprise “unfavorable” recommendation to the full Legislature. The battle seemed out of place for committee members, whose legacy had been one of bipartisanship.

“I was surprised, and I was disappointed,” said Rep. William Tong, co-chairman of the Judiciary Committee, who lamented politicization of a nominee who was overwhelmingly confirmed to the bench five years ago, and whose judicial temperament has drawn comparisons to the late U.S. Supreme Court Justice Antonin Scalia.

Tong said the vote revealed a lobbying effort against McDonald was at work. “There are obviously outside efforts, that we have nothing to do with but they are happening, because the activist groups are really activated,” he said. “I don’t know what’s going on over there [on the Republican side], but I don’t understand how there can be so much rigidity in their position. I’ve never seen it before.”

In comments on the House floor March 12, some legislators, including Democrats, turned the McDonald nomination into a referendum on Connecticut’s abolished death penalty, referring to the judge as an activist jurist who should have recused himself in the controversial State v. Santiago capital punishment case in 2012. With McDonald concurring in August 2015, a 4-3 majority held that the death penalty is cruel and unusual punishment and, therefore unconstitutional.

While legal scholars have pointed out that it is improper for legislators to oppose a judicial nominee based on their political opposition to prior rulings, numerous state representatives overtly did so during the March 12 debate, reiterating allegations that McDonald is an “activist” judge and complaining that death row inmates like the Cheshire home-invasion murderers would not receive the punishment they deserve. In television and print ads opposing McDonald, Connecticut Republicans have stoked the fire, claiming the jurist “opposed the death penalty for the Cheshire murderers” and “makes decisions based on revenge.” Print ads point out that they are “not endorsed by any candidate’s committee or candidate.”

In a recent interview, Fasano said party members should be—and are—looking both at McDonald’s decisions and the methodology he has employed in coming to them.

“You’re going from a member of a team to the captain of the team,” Fasano said. “It’s a different analysis. There are different duties and different criteria. Now he has a track record of decisions and methodology, and that’s what we should be reviewing.”

Fasano maintained that Republicans had not caucused regarding the McDonald nomination and do not have an official partisan stance against him, despite votes that have conveyed unanimous opposition. He added that, if anyone is politicizing the nomination, it’s Democrats, who have funded television ads, billboards and robocalls to legislators urging support.

“You’ve got one side that is actually reading the cases, and the other side is creating a media campaign on a fake issue,” he said.

Supporters of McDonald say he is being assailed with an arsenal of partisan vitriol and bigotry because of his closeness to an unpopular governor and his sexuality. Fasano has called contentions of homophobia “offensive,” but some members of the Democratic party have said the characterization is accurate.

“I have to say as a gay person in the audience during his judiciary hearing, to watch a colleague and friend—and ally in the LGBT fight—to watch the way he was treated, to those of us who are gay, it was awful,” said Sen. Beth Bye of West Hartford. “There was no way his being gay didn’t feel like it was part of the story to us. I have never seen anyone treated that way on the Judiciary.

“It hasn’t been that long that we’ve had rights,” Bye continued. “Fifteen years ago, the only place I could put my arm around my wife was in church. There are still remnants of that. I think Gov. Malloy was challenging some of those people. He ignited the fire. There are those who still resent the progress we’ve made and resent the work Andrew did on these issues.”

Amid the partisan battle, McDonald’s nomination has drawn the attention of national organizations, including Moveon.org and the Human Rights Campaign. Prior to the close House vote, the HRC released a statement urging full confirmation. “At a time when partisan politics continues to stand in the way of real progress in our country, we urge the Connecticut legislature not to politicize the judicial confirmation process and make a fair choice,” a release said.

On March 22, a group of 72 professors, including both Democrats and Republicans from the Quinnipiac, University of Connecticut and Yale law schools, announced their support, citing the state judiciary’s history of rising above partisanship. “Our national reputation for a strong and non-political judiciary, and for highly-qualified jurists, will be undermined if this—or any future—nomination fails for any reason other than a serious review of the nominee’s qualifications,” the group wrote.

While a partisan stalemate in the evenly dispersed state Senate would ordinarily give the advantage to Democrats who have the tie-breaking vote of Lt. Gov. Nancy Wyman, another roadblock for McDonald is the announced recusal of Sen. Gayle Slossberg, who once claimed in civil testimony that McDonald yelled at her during a Democratic caucus meeting. The alleged incident, upon which Slossberg based her recusal, was submitted in an affidavit to the state Supreme Court in 2014.

The request also noted that Slossberg’s husband, David Slossberg, had been opposing counsel against McDonald in a civil case involving McDonald’s husband, Charles Gray, which allegedly left the attorneys with bad blood that could affect McDonald’s judgment.

Slossberg claimed that personal animus would be a factor in McDonald’s participation in a case involving Connecticut auto body shops, in which David Slossberg had won a nearly $35 million verdict at the trial and appellate levels against The Hartford insurance company. McDonald ultimately did not recuse, but that decision was negligible, as the court unanimously overturned the verdict.

Slossberg told the Connecticut Law Tribune that she takes her affidavit to the Supreme Court “very seriously,” despite claims from sources who said she mischaracterized McDonald’s behavior.  

With Slossberg’s recusal and senate Republicans’ promise to oppose McDonald in their vote later today, Connecticut  appears poised to turn a potentially historic appointment into a historic rejection.

“I think it’s very sad that we have come to a point in this state where the selection of a chief justice of the Supreme Court and the determination as to whether a truly qualified nominee is going to get the job is going to be based on political factors,” said Robert Mitchell, partner at Mitchell & Sheahan, a Republican and member of the Connecticut Law Tribune’s editorial board. “Those factors are dislike of the governor, personal dislike of the candidate by one Democrat and an ill-advised political attack. I am truly disappointed.”

In the face of defeat, Malloy said he had renominated every Republican judicial nominee who came before him in the spirit of bipartisanship, even when he disagreed with them philosophically. He also vowed to support his friend.

“I will not pull Justice McDonald’s nomination. I think he deserves a vote,” the governor said. “He is extremely well qualified to not only sit on the Supreme Court, but to serve as chief justice.”