Friday, December 28, 2012

Some Question McDonald's Fitness To Serve On Connecticut Supreme Court

Shortly after Governor Dannel Malloy nominated his chief counsel Andrew McDonald to Connecticut’s Supreme Court, the Day of New London noted that it was “a testament of how far Connecticut has come that the least controversial fact about Andrew J. McDonald, nominated by Gov. Dannel P. Malloy on Thursday to join the state Supreme Court, is that he is openly gay.”

When Mr. Malloy announced awhile back that his administration was the gayest in Connecticut history, no one bated an eyelash. Mr. McDonald was married to Charles Gray in 2009 by then Mayor of Stamford Malloy; under Secretary for Criminal Justice Policy and Planning Michael Lawlor, the author of the problem ridden Earned Risk Reduction Credits program, is also openly gay.

A few decades ago, gays in Connecticut occupied on the ladder of social acceptance a rung a little bit below that of lepers and Republicans. Mere association with gays over the years utterly destroyed the prejudice against them. Familiarity does not always breed contempt; sometimes it breeds a loving understanding.

Connecticut abolished the last of its progressively ameliorated penalties for sodomy in 1969. In 2004, a Superior Court, rejecting a claim that the constitution did not permit merely an “equivalent nomenclature for such protection and process,” found Connecticut’s Civil Union marriage law was not inconsistent with a Connecticut constitutional provision requiring equal protection and due process of law. Then Attorney General Richard Blumenthal, now a U.S. Senator, declined to argue the case when it was appealed to Connecticut’s Supreme Court but sent a functionary to do so. It was supposed by some commentators at the time that Mr. Blumenthal did not wish to step into a mare’s nest that might have impacted his future plans to run for national office. In 2008, the Supreme Court issued a ruling guaranteeing same sex marriage rights and striking down the legislature’s civil union provisions as unconstitutional. Bowing to the high court’s ruling, the General Assembly codified same sex marriage in 2009.

Following Mr. Malloy’s press release announcing his nomination of Mr. McDonald to Connecticut’s already progressive and politically attuned high court, CTMirror noted:

“As a justice, McDonald would bring to the state's highest court the perspective of a politician who struggled to draft and pass legislation on the death penalty, gay marriage, transgender rights, gun control and drug penalties.

"’The Judiciary Committee is the legislative cauldron for all of that,’ McDonald said in 2009, when the panel drew the ire of Catholic clergy by considering a bill that could have forcibly reorganized the finances of Catholic parishes.”
Mr. McDonald’s judgment – as well as his lack of qualifications for the high court – has been called into question by others. The Day reasonably doubts Mr. McDonald has the requisite experience to serve on the court, a point that was considered of crucial importance when Susan Bysiewicz ran on the Democratic ticket for Attorney General: “This is arguably more a political appointment than a judicial one. Mr. McDonald, 46, has no experience on the bench. His experience is as a former state senator and political appointee.”

Mr. McDonald is a bit of a cauldron himself. Not only would the bill written by the two co-chairs of the General Assembly’s Judiciary Committee,  Mr. Lawlor and Mr. McDonald, have “forcibly reorganized the finances of Catholic parishes,” it would have changed the apostolic nature of the Catholic Church in Connecticut and as such indicates a remarkable insensitivity to the history of church-state relations in the United States.

In the colonial period, the General Court, the Congregational governing body for the state, was a theocratic instrument that suppressed religious dissent and blocked the gateway of religious liberty for other denominations. Had the bill proposed by Mr. Lawlor and Mr. McDonald come before the Connecticut Supreme court on review, one might hope that a majority of the justices would have regarded SB 1098 as an instrument of religious suppression that violated the “free exercise” clause of the First Amendment,  the "Supremacy clause," and the Fourteenth Amendment barring discriminatory legislation. The bill written by Mr. Lawlor and Mr. McDonald was narrowly contrived to affect only the Catholic Church in Connecticut. The state’s high court, some fear, may be less likely to render dispassionate justice should Connecticut’s General Assembly, no longer a theocratic body committed to a Protestant form of church governance, affirm the governor’s nomination.


Stephen Mendelsohn said...

You missed an additional issue that gets to the heart of Andrew McDonald's conflict of interest in serving on the Connecticut Supreme Court. Back in June, during oral arguments in Ludlum et al. v. Malloy regarding Governor Malloy's controversial executive orders forcibly unionizing personal care attendants and daycare providers, McDonald was quoted by CT News Junkie as saying, "This was the first time in 20 years of practicing law I’ve watched the radical Right in the courtroom. It was a surreal and bizarre experience."
Cathy Ludlum's case against Public Act 12-33, which supersedes the executive orders, may well wind up before the Connecticut Supreme Court. McDonald has shown by his extreme statements treating an issue of the rights of people with disabilities (specifically, employers with disabilities) as "radical Right" to be biased and unable to fairly judge this case. Will McDonald pledge to recuse himself from this case? And what about other cases where McDonald has acted on behalf of the Malloy administration and which may come before the court?

Don Pesci said...

Glad you noticed.

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