HARTFORD, Conn. (CN) – After more than 13 hours of testimony the Connecticut Judiciary Committee was evenly divided early Tuesday on whether to elevate state Supreme Court Justice Andrew McDonald to chief justice.
The committee voted 20-20 on his nomination, which means it will forward what will be considered an unfavorable report to the House and Senate. Rep. Thomas O’Dea, R-New Canaan, abstained.
The vote puts into question McDonald’s promotion to the position. If he’s confirmed McDonald would be the first openly gay Supreme Court chief justice, according to administration officials.
Going before the Judiciary Committee that he once chaired was no easy task for McDonald, who was grilled by his former colleagues for eight hours Monday about decisions he’s made over the past five years as a justice and during his tenure as a state lawmaker.
The committee also probed McDonald’s 35-year friendship with Democratic Gov. Dannel P. Malloy, who appointed him to the court.
McDonald’s 2013 appointment was not as controversial as Malloy’s attempt to elevate him to chief justice. Five years ago, McDonald was approved 30-3 by the Senate, and 125-20 by the House.
But 2018 is an election year and Republican lawmakers and candidates have infused McDonald’s nomination with a more Washington-style partisan debate.
Thirty minutes prior to the public hearing Monday, 10 members of the conservative caucus said in a statement that McDonald doesn’t have enough experience to become chief justice.
“Our members also have concerns about Justice McDonald’s role in the judicial repeal of Connecticut’s death penalty statute and other potential judicial overreach,” the 10 lawmakers wrote. “However, given his lack of judicial experience, we need not factor those concerns into our decision to oppose Justice McDonald’s nomination. Justice McDonald may be, or may become, a fine jurist. However, given his lack of experience and lack of a substantial body of work, we do not believe he is currently the right person.”
Unlike recent practice in Washington, Connecticut’s General Assembly hasn’t ever tried to postpone an appointment to the court until a new governor is elected.
Malloy isn’t seeking re-election and over the past eight years has been able to seat six of the seven current Supreme Court Justices.
In the 13th hour of McDonald’s hearing, state Sen. John Kissel, R-Enfield, told McDonald that if he doesn’t get nominated to chief justice, “it’s not like you lose your job.”
The vote on McDonald, who has served in all three branches of government, could go down to the wire.
“This is a really hard decision for me personally,” Kissel said. “I don’t know how it’s going to shake out in this building.”
Kissel said the numbers between the two parties are so close he’s unable to predict what’s going to happen.
Democrats hold a 79-72 majority in the House and the state Senate is evenly divided 18-18.
McDonald testified Monday that he’s written approximately 100 opinions since being nominated to the Supreme Court in 2013. Those include 69 majority opinions, 15 dissenting opinions, 12 concurrences, and 12 concurring and dissenting opinions. He’s been on the panel for 483 decisions.
Despite those numbers, Republican gubernatorial candidate Tim Herbst said McDonald has “no judicial experience.”
“If John Rowland or Jodi Rell nominated their best friend and political advisor to serve as the Chief Justice of the Connecticut Supreme Court, they would have been rightfully excoriated by the political opposition and likely criticized by those in their own party,” Herbst said.
But a group of attorneys, bar associations, and three law school deans warned in a letter to the Judiciary Committee that “reviewing judicial decisions through too partisan a lens and with political purposes in mind poses risks to the independence of our judiciary and to our system of checks and balances.
“If judicial confirmations focus less on a judge’s qualifications and more on the partisan political implications of a judge’s nomination, then judicial decisions are likely to become influenced by judges’ perceptions of what is politically controversial at the time,” the group wrote.
Jonathan Shapiro, incoming president of the Connecticut Bar Association, testified after midnight that politics should not play any role in judicial nominations. Many others in the legal community agreed.
Lawmakers also questioned McDonald for hours about his decisions regarding Connecticut’s death penalty – which was prospectively abolished by the Legislature – his definition of judicial activism, and legislation he asked to be drafted in 2009 before he joined the court that would have impacted the corporate structure of the Catholic Church.