Dannel Malloy

Following a month of controversy, recriminations and marathon hearings, the Connecticut Senate on Tuesday voted down the nomination of Andrew McDonald as the chief justice of the state Supreme Court.

The 16–19 vote fell largely along party lines: All 18 Senate Republicans and one Democrat — Joan Hartley, D-Waterbury — voted against the nomination, while 16 Democrats voted in favor and one abstained. Currently an associate justice on the Supreme Court, McDonald would have become the nation’s first openly gay state state Supreme Court chief justice. While Republicans took issue with McDonald’s past legal decisions, Democrats accused his opponents of partisan charade and homophobic prejudice.

“I regretfully acknowledge that I have been unsuccessful in my effort to be confirmed as Chief Justice of the Connecticut Supreme Court,” McDonald said in a statement Tuesday. “And to the LGBT community, particularly its youth who I know have been closely watching this process, I want you to understand that every minority group in history has faced setbacks.”

One major point of contention was McDonald’s position on the death penalty, which Republicans highlighted in hearings and debates as an example of his “liberal activist” judicial philosophy. In 2015, McDonald, along with three other justices, ruled the death penalty unconstitutional for inmates who were already on death row when the state legislature abolished the death penalty in 2012, an outcome the earlier law specifically sought to avoid.

In an interview with the News, Gary Rose, a political science professor at Sacred Heart University, said that McDonald’s judicial positions, especially on the death penalty, were out of sync with that of many lawmakers. He pointed to Hartley’s vote as evidence that the opposition concerned more than partisan wrangling. These positions, combined with Malloy’s unpopularity, the prospect of an election year and certain controversial actions McDonald took as a state senator — such as entrusting laypeople with the finances of Catholic parishes — doomed his nomination, Rose said.

“It was certainly far more divisive than any nomination I can remember,” Rose said. “All these factors came together and created a perfect storm against him.”

For Democrats, the rejection represented something more ominous. Following the vote, Malloy issued a statement calling Republicans’ explanations “thinly veiled excuses for blocking the appointment of an eminently qualified jurist,” noting that McDonald has garnered wide support among legal experts, law school deans and editorial boards of publications across the state, including the Hartford Courant. Democratic Senate President Pro Tempore Martin Looney, D-New Haven, accused Republicans of being “in lockstep with McConnell,” who blocked President Barack Obama’s Supreme Court nominee Merrick Garland in 2016.

Others raised questions that McDonald’s sexual orientation may have played a role in his rejection. Senator Beth Bye, D-West Hartford, Connecticut’s only openly gay state senator, said on the House floor on Tuesday that “implicit bias” against homosexuality played a part in the extended questioning and hard scrutiny by conservatives. Republicans, however, denied these allegations. Republican Senate President Pro Tempore Len Fasano, R-North Haven, told reporters after the vote that the charge of homophobia is “absolutely false” and that some Democrats might have voted for McDonald because of pressure from party leaders.

In an interview with the News, Norman Pattis, a New Haven–based attorney who supported McDonald’s nomination, warned that the nomination may inaugurate a new era of intense partisan animosity that could compromise judicial independence. He noted that the state courts — even the state Supreme Court — usually deal with quotidian, uncontroversial issues and said the injection of partisanship into the process could lead both sides to seek retribution, leading to structural understaffing of the court.

“If this obstruction for obstruction’s sake becomes the norm here, I shudder to think what would happen,” Pattis said. “As everyone knows, justice delayed is justice denied.”

Ronald Shurin, a political science professor at the University of Connecticut, offered a rosier outlook. The new governor elected in November, he said, is likely to enjoy a “honeymoon” period where nominees will face less scrutiny than nominees picked by Malloy, with his low popularity, may draw at the moment.

Fasano said he would be open to considering any new nominee the governor might select in the coming days. He suggested Richard Robinson, another associate justice of the Supreme Court who was appointed by Malloy in 2013, as a viable option.

Still, Senate Democrats urged their colleagues to reconsider the vote on Wednesday.

“Today, I am asking that one of the 19 members of the Senate who voted down Justice McDonald’s confirmation as chief justice to have the courage to make a motion to reconsider,” Looney said. “What was evident on the floor yesterday was that the Republicans failed to make a case as to why Justice McDonald is not qualified to lead the court. Their actions to block Justice McDonald’s confirmation have been panned by editorial boards and the legal community.”

On Jan. 8, Malloy announced the nomination of McDonald to replace Chase Rogers, who retired on Feb. 2 as the chief justice of the state Supreme Court. McDonald, a graduate of Cornell University and University of Connecticut Law School, previously served as chair of the Connecticut judiciary committee before his nomination to the state Supreme Court in 2012.

On March 12, McDonald’s confirmation narrowly passed the Connecticut House of Representatives, by a 75–74 margin, as five Democrats voted with Republicans against McDonald. The vote in the Senate seemed unlikely after the recusal of state Sen. Gayle Slossberg, D-Milford, gave Republicans a one-vote majority heading into the confirmation.

Connecticut Democratic candidates for governor took to Twitter, announcing that they would renominate McDonald to the seat if elected.

“If the GOP blocks this nomination, the next governor should renominate Andrew McDonald for chief justice,” Hartford Mayor Luke Bronin wrote on Tuesday.

While Democratic candidates Jonathan Harris and Ned Lamont agreed with Bronin on Twitter, Republican gubernatorial candidate Tim Herbst has criticized McDonald for making partisan decisions on the bench.

In its highest court, the U.S. territory of Puerto Rico has an openly gay chief justice.

Isabel Bysiewicz | isabel.byesiewicz@yale.edu 

Malcolm Tang | jiawei.tang@yale.edu