Turning point for future of state courts

S enate Republicans should think carefully about the implications of blocking Gov. Dannel P. Malloy’s nominee for chief justice of the state Supreme Court, Justice Andrew McDonald.

Unlike the U.S. Senate, the Connecticut legislature has a tradition of not politicizing appointments to the state courts. Respecting the independence of the courts, Connecticut lawmakers have assessed nominees on their legal qualifications, and their deficiencies, not by dissecting their legal and political interpretations of specific issues.

In keeping with that tradition, governors have reappointed judges and appellate justices when their eight-year terms expire, even if they were appointed by the governor of another party and may have issued decisions with which the incumbent disagreed.

All that could well change if Republicans use their temporary 18-17 majority in the Senate to block Malloy’s pick for chief justice. Democrats will not forget. The people of Connecticut do not want to see their legislature mimic Washington in subjecting every appointee to the Supreme and Appellate courts to an ideological litmus test, pawns in a zero-sum game of political power.

No one, it seems, is questioning Justice McDonald’s qualifications. In 2012, a 33-3 Senate vote and 125-20 vote in the House of Representatives confirmed McDonald’s appointment to the state Supreme Court. That included substantial Republican support.

McDonald has been judged qualified for the top spot on the court by most every legal expert who has weighed in on the appointment, including the state’s largest law firms and the deans of the state’s law schools — Yale, the University of Connecticut, and Quinnipiac.

McDonald’s great sin was to cast a decisive vote in the Supreme Court’s 4-3 decision striking down Connecticut’s constitutionally flawed death penalty law. In 2011, the legislature voted to repeal the death penalty in Connecticut. But to make the decision more politically palatable, it allowed for the executions of the 11 men already on death row to move forward.

The court rightfully found that unequal treatment to be unconstitutional.

Republicans kept harping on that vote during debate in the House of Representatives, where McDonald’s nomination was narrowly affirmed, 75-74, sending it to the Senate.

McDonald is particularly vulnerable on the issue because he was Malloy’s chief legal counsel when the political strategy to repeal the death penalty, while trying to keep it in place for death-row inmates, was cooked up. In his 4-3 decision, McDonald also needlessly brought racial issues into his opinion, when that was not the legal matter being argued.

Yet the court’s fundamental arguments for finding the law unconstitutional were sound and rejecting McDonald’s promotion to chief justice because of this vote would amount to political retaliation.

Republicans have also dissected McDonald’s decisions whether to recuse himself on particular cases. Legal experts, however, have found no evidence he strayed outside of ethical boundaries in those cases.

The reason Senate Democrats have only 17 votes is related to one such case. Sen. Gayle S. Slossberg, D-Milford, has recused herself from the confirmation vote. Her husband, attorney David Slossberg, claimed in a December 2014 court filing that McDonald could potentially hold a grudge from an earlier case over which they strongly disagreed. He wanted McDonald disqualified from a Supreme Court case in which Slossberg was an attorney. McDonald found no conflict and participated, a case that ended with the court unanimously ruling against Slossberg’s client.

Two local Republican senators — Sen. Heather Somers of Groton and Sen. Paul Formica of East Lyme — will cast critical votes on this nomination. They might look to the courage shown by Rep. Livvy Floren of Greenwich, who set aside politics to cast the lone Republican vote in the House in favor of McDonald’s nomination.

Floren pointed to the nominee’s “research … respect for the rule of law and respect for the opinions of others.”

What does not appear to be a driving force in the effort to block this appointment is the fact that McDonald would become the first openly gay man to become a state chief justice. While we cannot know all that drove House Republicans to vote against McDonald’s elevation to chief justice and head of the Judiciary Branch, nothing in the record suggests sexual orientation was a driving factor.

Yet if Republicans choose to make the political decision and block McDonald’s appointment, they can anticipate Democrats in the coming election to remind voters that their decision did, indeed, block what would have been another historic milestone for the gay community, and with questionable justification. Connecticut Republicans may find themselves linked to their cultural conservative counterparts from red states. That may not be a good place to be come November.

The Senate vote is expected by the end of the month.