Republicans fail to block nomination of first gay chief justice

Photo: State of Connecticut Judicial Branch

After a tight vote in Connecticut House of Representatives, Justice Andrew McDonald is one step closer to being the first openly gay chief justice in the U.S.

The Connecticut House of Representatives voted 75 to 74 Monday to confirm the nomination of Associate Justice Andrew McDonald to be the next Chief Justice of the Connecticut Supreme Court.

Having barely survived a bitterly divided House, McDonald now faces a tough vote in the state Senate, as Republicans attempt to block his nomination by retiring Democratic Gov. Dan Malloy.

McDonald’s nomination has been praised by groups like the Human Rights Campaign and the Connecticut Law Tribune, both of which have decried partisan efforts to stonewall the nomination.

“If measured fairly, McDonald stands more than qualified for the chief’s job. He should be resoundingly confirmed by the Legislature,” wrote Robert Mitchell, a Republican on the editorial board of the Connecticut Law Tribune. “Republicans who stand against him for pure political reasons stand shamefaced before the public. They embarrass the rest of us.”

But just one Republican, state Rep. Floren Livvy of Greenwich, voted in favor of McDonald Monday. She broke with her party to praise McDonald.

“He does his research. He gathers the facts. He analyzes data and he listens,” Livvy said Monday.

Livvy’s colleagues on the right were unconvinced, leading to the incredibly tight vote this afternoon.

An unprecedented partisan process

When Malloy announced McDonald’s nomination in January, he was widely expected to sail through confirmation. McDonald has served on the Connecticut Supreme Court since 2013, where he was easily confirmed on a bipartisan basis.

Activists around the country celebrated McDonald’s anticipated elevation on the court, which would make him the first openly gay chief justice in the United States. Then came the backlash.

First, Republican gubernatorial candidate Tim Herbst opposed the nomination, saying that McDonald would be a “partisan” in the role. Next, the Family Institute of Connecticut, a conservative group that opposes same-sex marriage, launched a campaign to block McDonald’s appointment on the same grounds.

Those efforts got a boost in late January, when Breitbart News ran a negative piece about McDonald that referred to his marriage to husband Charles Gray in scare quotes.

Breitbart disparagingly refers to Andrew McDonald's marriage in scare quotes as a way of delegitimizing same-sex marriage.

Screenshot from a Breitbart article about McDonald.

Despite right-wing efforts, McDonald was still expected to be confirmed without much opposition in the state General Assembly.

Then something unexpected happened. Taking a page from the Mitch McConnell playbook, Connecticut Republicans began to signal that they would attempt to block the nomination by outgoing Gov. Malloy.

State Rep. Prasad Srinivasan, another Republican candidate for governor and a member of the Legislature’s Judiciary Committee, said he would vote against McDonald’s nomination.

“Let it be decided by the new governor,” Srinivasan said. “It shouldn’t be made by an outgoing governor, a lame duck, whatever we choose to call Governor Malloy.”

The “judicial activism” debate

When McDonald came before the Joint Judiciary Committee in February, Srinivasan and his Republican colleagues grilled him for 13 hours. They used the hearing to paint McDonald as a “judicial activist” for his ruling that ended the death penalty in Connecticut.
On February 27, the Joint Judiciary Committee voted along party lines on whether to recommend McDonald for a full vote within the General Assembly. The result: a 20–20 tie that allowed McDonald to advance, though with an “unfavorable recommendation.”
Since this vote, the nomination process has become even more of a partisan circus. Campaign-style robocalls and even television ads have become part of the battle over the chief justice nomination process.
Before Monday’s vote, a number of Republicans spoke out against McDonald, focusing largely on the issue of the death penalty.
Among those who criticized McDonald was Republican state Rep. William Petit, whose wife and two daughters were brutally murdered in the infamous 2007 Cheshire home invasion case.
The killers in the case were set to be executed, until McDonald cast a deciding vote on the Supreme Court that found Connecticut’s death penalty unconstitutional.
Speaking before the General Assembly, Petit called McDonald’s decision an example of political bias affecting his ability to interpret state laws.
Petit cited public polls showing broad support for the death penalty at the time of the ruling, though that point may undermine Petit’s own argument. The popularity of a law has no relationship to the constitutionality of that law, which is the purview of the Supreme Court.
In fact, if McDonald had ruled that the death penalty were constitutional based on public opinion polls rather than on the state constitution, that would be judicial activism. It’s a point McDonald himself made during his confirmation testimony in February.
“At times, judicial activism is in the eye of the beholder,” McDonald told legislators. He added that both Republicans and Democrats are guilty of unfairly accusing judges of “judicial activism” when they are unhappy with the outcome of a case.
McDonald also noted that he regularly voted with Justice Peter Zarella, the most conservative member of Connecticut’s Supreme Court, until Zarella’s 2016 retirement.
Despite the objections of Republicans, McDonald’s nomination will now advance to the full Senate, though his odds of being confirmed are looking slimmer after today’s partisan vote.
While Democrats hold an advantage in the House, the parties are tied for control of the Senate, and one Democrat has already recused herself from the process. That means McDonald will have to flip at least one Republican state senator, or his nomination will fail 17 to 18.