Tong’s case for McDonald is hypocritical nonsense

A rguing last week for Gov. Dannel P. Malloy’s nomination of Associate Justice Andrew J. McDonald to be chief justice of Connecticut’s Supreme Court, state Rep. William Tong, D-Stamford, co-chairman of the General Assembly’s Judiciary Committee, fed the state House of Representatives a lot of nonsense.

“We are not in a position of second-guessing judges,” Tong said. “We must honor the separation of powers. If we don’t, we compromise the independence of the judiciary.”

But if it’s wrong for legislators to second-guess judges, why does Connecticut’s Constitution give the General Assembly the power to appoint and reappoint them, just as the U.S. Constitution gives Congress the power to appoint judges? By what criteria should legislators decide judicial appointments?

Tong and other backers of McDonald, nearly all of them political liberals, maintain that experience, ability, and character should be decisive, not what nominees have done or are likely to do in office. By this standard the country should have obediently accepted forever the U.S. Supreme Court decisions in Dred Scott v. Sandford (once a slave, always a slave), Plessy v. Ferguson (racial segregation is OK), and Lochner v. New York (labor conditions can’t be regulated by government), and should obediently accept forever the court’s decisions in Citizens United v. Federal Elections Commission (corporations have First Amendment rights) and District of Columbia v. Heller (individuals have Second Amendment rights).

Of course McDonald’s supporters don’t really believe their own argument. None would argue that President Richard Nixon’s Supreme Court nominations of Judges Clement F. Haynsworth Jr. and G. Harrold Carswell, former segregationists, should have been confirmed by the U.S. Senate just because of their experience and good character, nor that Judge Robert H. Bork, nominated to the court by President Ronald Reagan, should have been confirmed, though he was a brilliant scholar and was faulted only for holding that constitutions should be construed as they were originally understood.

The Senate rejected those nominees for political reasons — they were seen as too conservative and interventionist — and all of liberalism cheered. But Connecticut is being told that judicial nominees must not be opposed for being too liberal and interventionist.

As for Tong’s supposed concern for the separation of the powers of government, Connecticut’s Supreme Court long has been separating the legislature from its powers. That’s what the court’s recent decision purporting to find capital punishment unconstitutional was about, a decision in which McDonald concurred.

In fact the separation of powers of the branches of government applies only to the exercise of those powers, not their definition, which is left to the state and federal constitutions and to statute. Deciding on judicial nominations does not violate the separation of powers.

As for judicial independence, that applies to deciding individual cases, not to the wholesale rewriting of constitutions, as the state Supreme Court did in the capital punishment case.

With the latest long-term master contract for the state employee unions, Malloy has put the expensive privileges of these employees beyond control through the ordinary democratic process for a decade.

Judicial terms in Connecticut are eight years, so if McDonald is appointed chief justice, the governor may have guaranteed liberal interventionism on the court for nearly as long.

That would be more of a legacy than most governors leave.