The state Senate delivered a historic rejection Tuesday of Justice Andrew McDonald as the state’s next chief justice of the Supreme Court in a bitter and emotional battle over controversial issues ranging from the death penalty to homophobia.
All 18 Senate Republicans voted against McDonald and were joined by a moderate Democrat, Sen. Joan Hartley of Waterbury, a strong supporter of the death penalty who was concerned about McDonald’s vote to eliminate capital punishment.
A breakthrough in the controversy came previously when a key Democratic swing voter, Sen. Gayle Slossberg of Milford, said she would not vote due to a conflict of interest related to bitter private clashes with McDonald that spilled into the public eye last month during McDonald’s confirmation hearing. Slossberg’s recusal gave Republicans an 18-17 advantage in the evenly divided chamber.
Gov. Dannel P. Malloy, a close friend and political ally of McDonald’s for the past 25 years, charged that part of the reason that Republicans are opposed to McDonald is that he is gay. But Republicans have repeatedly and heatedly denied that allegation, saying they have never mentioned McDonald’s sexuality during the weeks that his nomination has become highly controversial.
Republicans view McDonald as a deeply partisan, liberal Democratic judicial activist who inserts his personal opinions into his judicial rulings, including eliminating the death penalty. They also said that he should have recused himself from the death penalty and other cases.
Democrats rejected that notion, saying McDonald is a brilliant, Ivy League-educated jurist with a unique lifetime of experience in important positions in all three branches of government, including serving five years on the state’s highest court. They said it would be a challenge to the independence of the judicial branch and a major mistake to reject McDonald.
The emotional battle turned into an unprecedented, full-fledged political fight with McDonald’s supporters sending thousands of campaign-style “robocalls” to constituents of Republican legislators to urge them to lobby lawmakers to vote for McDonald.
“In this turbulent personal moment, I don’t know what the future holds for me,’’ McDonald said after the vote. “I do know, however, that I will face it secure in the love and affection of my husband, Charles, and an amazing group of friends and family that I cherish, never more than I do today.”
In a news conference after McDonald’s defeat, Malloy said that Republicans had made “thinly veiled excuses” to block McDonald.
“It’s an undeniable fact that Andrew McDonald has been treated differently than others that came before him,” Malloy said. “A person does not need to use homophobic slurs in order for their actions to be homophobic. … I am sorry he had to go through this. … I feel bad for my state.”
Malloy said that the way McDonald was treated is “as low as you can go.”
Concerning the upcoming elections in November, Malloy said, “I personally would not vote for anyone who voted against Justice McDonald. … I think anyone who has a gay friend, or child or relative should think twice about supporting anyone who voted against Justice McDonald.”
“Let there be no doubt that Andrew was treated differently than any other person nominated and quite frankly the only difference is that he was openly gay,” Malloy said.
Based on state law, Malloy could nominate another candidate for chief justice next week.
Malloy did not name any justice’s but Senate Republican Leader Len Fasano said that the new chief justice could be Justice Richard A. Robinson, who served for 13 years on the bench before being elevated to the high court in 2013. Robinson was nominated by then-Gov. John G. Rowland to the Superior Court and then by then-Gov. M. Jodi Rell to the Appellate Court.
During more than four hours of debate Tuesday, Sen. John Kissel, an Enfield Republican, said that after serving with McDonald for eight years in the state Senate and on the judiciary committee, Kissel saw McDonald as a passionate Democrat who supported eliminating the death penalty and other issues.
“We don’t want an activist chief justice driving this branch of government,’’ Kissel said on the Senate floor. “It’s a dyed-in-the-wool Democratic background that he has. … I, personally, like Andrew McDonald. This was not an easy decision for me to make. … He was always super kind to me and my family.’’
In the same way, Fasano said that he likes McDonald personally but needed to make a tough vote Tuesday on the future of the court.
“I really wish we didn’t have to take this vote today because I like the guy,’’ Fasano said. “It bothers me that I have to vote no.’’
But Sen. Beth Bye, a West Hartford Democrat who noted that she is the only openly gay senator, said McDonald had clearly been treated differently than other previous candidates to be chief justice — citing that his public hearing lasted nearly 13 hours.
“Forgive my skepticism that this has nothing to do with Justice McDonald being gay,’’ Bye said. “I am so sorry for my good friend, Andrew, that he has had to go through this very different and very unusual confirmation process.’’
She added, “I want to be clear that I’m not questioning any individual senator’s vote or their motivation for the vote. I just had to lay out what it feels like from my perspective, and from my perspective, it’s a sad day for Connecticut.’’
Sen. Joan Hartley, the Democrat who joined the Republicans in voting against McDonald, said it would have been “prudent” for McDonald to recuse himself from a key vote on the court that eliminated the death penalty. A longtime supporter of the death penalty, Hartley said she believed that McDonald had voted his conscience in opposing the death penalty.
“Today, I, too, will vote my conscience,” Hartley said.
Based on state law, Malloy could nominate another candidate for chief justice next week.
Bye and other Democrats predict that Republicans will suffer political consequences from voting against McDonald.
But Republicans don’t see it that way, downplaying any potential political blowback more than seven months from now in the November elections.
“I don’t think a vote against Andrew McDonald is a particularly dangerous vote politically,’’ said Sen. Joseph Markley, a conservative Republican from Southington.
Markley was one of three Republican senators who voted against McDonald when he was nominated to the court in 2013, and he says he will vote “no’’ again Tuesday. All three senators have since been reelected to their seats.
Sen. Michael McLachlan, a Danbury Republican, also voted against McDonald in 2013, along with negative votes in the judiciary committee that year and this year.
“I voted no three times already,’’ McLachlan told The Courant. “I don’t have anything else to say.’’
Courant staff writer Sandra Gomez-Aceves contributed to this report.
.galleries:after {
content: ”;
display: block;
background-color: #c52026;
margin: 16px auto 0;
height: 5px;
width: 100px;
}
.galleries:before {
content: “Politics Videos”;
display: block;
font: 700 23px/25px Belizio,Georgia,’Droid Serif’,serif;
text-align: center;
color: #1e1e1e;
}
