Chief justice nomination is the ultimate political issue | Public


Who really cares about the sexual orientation of Governor Malloy’s nominee for chief justice of the state Supreme Court, Associate Justice Andrew J. McDonald?

The governor seems to care a lot, as his announcement made much of McDonald’s sexual orientation and, as if the nominee was thought to be vulnerable on the point, the governor’s office followed the announcement by distributing endorsements of McDonald from 17 prominent people in politics and the legal profession. But no one had complained about McDonald’s sexual orientation when the governor nominated him to the Supreme Court five years ago.

When a candidate for the Republican nomination for governor, former Trumbull First Selectman Tim Herbst, criticized McDonald’s nomination for chief justice, the House chairman of the Judiciary Committee, William Tong of Stamford, a colleague of the governor and McDonald in that city’s Democratic Party, called Herbst “bigoted.” But Herbst had criticized only McDonald’s inexperience as a judge and positions he had taken as a state senator and in Supreme Court cases. There was nothing “bigoted” in that criticism.

So it seems the Democrats want to confine discussion of McDonald’s nomination to his sexual orientation to prevent debate of his positions on political and legal issues. Indeed, Tong added that McDonald’s nomination is “a landmark moment for our state for equality and civil rights” and involves “breaking down an unjust barrier.”

Is that really how the law should be construed — by balancing sexual orientations?

Herbst particularly faulted McDonald for voting with the Supreme Court’s 4-3 majority in the decision that ruled capital punishment unconstitutional in Connecticut. The decision is fairly criticized, since it was based on the false premise that the public had come to consider capital punishment to be cruel and unusual and thus unconstitutional and that this change of opinion had prompted the General Assembly and governor to repeal capital punishment for future offenses while maintaining those death sentences already ordered.

In fact the law was rewritten that way precisely because public opinion still favored capital punishment, especially for the murderers of the Petit family in Cheshire, while most legislators and the governor wanted to eliminate it. That is, the law was rewritten as a compromise to preserve capital punishment. So the court’s decision was dishonest, brazen judicial legislation, and McDonald was a big part of it.

Of course Democrats tend to favor appointment of judges who will construe if not rewrite the law outright in favor of liberal political objectives, just as Republicans tend to favor the appointment of judges who will do the same in favor of conservative political objectives. Herbst’s complaint that judicial appointees should be “apolitical” is quaint now that appellate courts function largely as de-facto super-legislatures almost everywhere.

That’s why McDonald’s nomination should be treated by the General Assembly as the ultimate political issue, treated as potentially deciding all details of school financing and integration, public employee union privileges, state and municipal tax levels, freedom of information, and everything else once decided by the legislature through the ordinary democratic process.

McDonald may be a good guy or a bad guy, a skilled jurist or a mere ideologue and polemicist, but his character and expertise matter to his nomination no more than his sexual orientation does. What matters is only how he will keep imposing his politics on the law.

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Chris Powell is managing editor of the Journal Inquirer.  

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