Borrowing a page from Washington GOP
T he obvious strategy for Connecticut Democrats heading into the 2018 election is to try to link state Republicans with their national counterparts in Washington and with President Trump. By voting Tuesday in lockstep to block Justice Andrew J. McDonald’s ascension to chief justice of the Supreme Court, state Senate Republicans have buttressed the case Democrats plan to make. That makes their decision even more perplexing.
With one Democrat opposing the nomination, death penalty supporter Sen. Joan Hartley of Waterbury, two Republicans were needed to break ranks in favor of confirmation. There were none, with the nomination rejected 19-16. McDonald remains on the court as a justice.
When Gov. Dannel P. Malloy nominated McDonald as a justice in 2012, he won confirmation by a wide margin, with Republicans largely in support. Back then, Sen. Len Fasano, R-North Haven, lauded McDonald as someone with “tremendous respect for the law.” He has told us since that he has not changed his mind about that vote.
So what changed? Why did Senate Republicans, who found McDonald well qualified to be a justice, unanimously conclude he was unfit for promotion to chief justice? The answer is power, politics and McDonald’s vote striking down the death penalty.
In 2016 Republicans gained equal footing in the Senate, 18-18. For the McDonald vote they held an 18-17 advantage because Sen. Gayle Slossberg, D-Milford, pointing to legal and personal run-ins she and her lawyer husband have had with McDonald, recused herself.
With their stronger hand, Senate Republicans delivered Malloy and the Democrats a stinging defeat, Washington style. Many Republicans even trotted out that familiar GOP Washington war cry — “activist judge” — meaning a judge who makes decisions with which they disagree.
In so doing, Republican senators blocked McDonald from becoming the first openly gay man to ascend to the position of state Supreme Court chief justice. That will only add to the political damage.
We take Republicans at their word when they say sexual orientation had nothing to do with their decision. Yet it was cringe-worthy to hear McDonald questioned during his confirmation hearing — by a Republican lawmaker — about his same-sex wedding and the fact that Malloy, a friend, presided.
“Has any justice nominated to the bench in Connecticut been asked about his wedding before?” Malloy asked during a Monday news conference. It appears the answer is no.
Democrats wasted no time making the case that with this decision Republicans risk changing a judicial appointment process that in Connecticut has been largely apolitical into the zero-sum game seen in Washington, where Republicans kept a seat on the Supreme Court open for a year to deny a Democratic president the appointment.
“There can be no question that Connecticut Republicans are no different than Washington Republicans and are in lockstep with Donald Trump and (Senate Leader) Mitch McConnell,” read the joint statement from Senate President Pro Tempore Martin M. Looney, D-New Haven, and Majority Leader Bob Duff, D-Norwalk. “Connecticut Republicans are setting a terrible precedent and are now condemning future judicial nominations to the type of partisan politics that has infected Washington.”
Malloy has his faults, no doubt, yet over the seven years as governor he has re-nominated every Republican judge whose term was up, some who had certainly made decisions with which he disagreed.
Conversely Fasano, after previously backing McDonald’s appointment to the bench, became the chief architect in building the case for his caucus to reject the promotion to chief justice. Fasano drilled down into the fine-point legal details of individual decisions, alleging flaws and conflicts. Yet members of the legal community who looked at the same cases — judges, lawyers, law school deans, ethical experts — supported McDonald’s promotion to chief justice and found no ethical lapses.
Fasano said there are those in the legal community who backed his position, but they preferred to remain anonymous.
As Malloy correctly noted, “Senator Fasano owes his constituents better than that.”
Republicans focused their opposition on McDonald’s participation in a 4-3 decision that struck down the last remnants of the death penalty in Connecticut. The court’s ruling spared the lives of the 11 men who were on death row when the legislature repealed capital punishment. Among them were the two men convicted of killing the wife and daughters of William A. Petit, now a Republican member of the House. Perhaps Republicans are betting the public will support their Washington-style takedown because of McDonald’s death penalty ruling.
In trying to resurrect passions about the death penalty, however, Republican lawmakers may have instead turned the passion of an electorate upset with the obstructionism in Washington toward themselves as well.