On
Capitol Report, Roy Occhiogrosso, Governor Dannel Malloy’s
chief cook and bottle washer during his first term, had this to say about State
Supreme Court Associate Justice Andrew McDonald: “I worked with Andrew, as you
know for a couple of years.” Before being appointed by Malloy to the Supreme
Court, McDonald was the Senate co-chairman, along with House Rep. Mike Lawlor,
of the Judiciary Committee. Occhiogrosso continued, “I’ve known him for a long
time – very smart, very careful, very conservative in the sense that he
observes the bright lines he is supposed to observe.”
It is telling that Occhiogrosso, who perhaps knows the mind of Malloy
better than most, should be constrained to announce that McDonald is in some
approvable fashion conservative. Some legislators, not all of them
conservative, might more justly argue that McDonald has rarely seen a bright
line he has not ventured to cross.
Is it possible that McDonald’s political patron, Malloy, is
anticipating an assault from right-reasoners when his nomination of McDonald for
Chief Justice of the State Supreme Court is put before the legislature for
approval? Could it be that Occhiogrosso’s eccentric characterization of a
“conservative” McDonald was offered as a deflective insurance policy against
McDonald’s historic, Stakhanovite leftism?
Certainly McDonald’s agitation against the death penalty when he was
serving as co-chair of the Judiciary Committee was not recognizably
conservative. At the time, eleven murderers were awaiting their just punishment
on Connecticut’s Death Row, all of them having had the benefit of two trials,
one to determine their culpability and a second hearing before a jury to
determine whether the death penalty in their case was justly applied. Past
legislatures, the current legislature, the numerous family members of the
victims of those awaiting punishment, all agreed that the death penalties
imposed were just and legally appropriate – particularly in the case of two
felons convicted of rape and arson-murder while on parole. The two had murdered
three women in Cheshire, a gruesome crime that made it impossible for then
Senator Edith Prague, certainly no conservative, to cast her vote in favor of a
measure that would vacate the death penalty against the eleven Death Row
murderers, all of whose crimes were horrific enough to warrant their just punishment.
The State Supreme Court, implausibly arguing that evolving moral
standards rendered the application of the death penalty unconstitutional, later
vacated the sentences of the eleven murderers on Death Row. The moral standards
evolved rather quickly, since the General Assembly, which represents the whole
political community in Connecticut, had earlier voted to retain the death
penalty in the cases of those awaiting punishment on death
row. McDonald, by that time a recent Malloy appointment to the State
Supreme Court bench, did not recuse himself from this decision, although his
prejudice against the death penalty had been displayed publicly – one
might even say brazenly displayed -- when he was co-chair of the Judiciary
Committee. A bright line had been crossed.
And this was not McDonald’s first bright line. Along with co-chair of
the Judiciary Committee Mike Lawlor -- later to occupy a new position approved by
his patron, Malloy, as Connecticut’s Under Secretary for Criminal Justice
Policy and Planning – McDonald inflamed Catholic priests and bishops in
Connecticut when a measure that would have changed the apostolic structure of
the Catholic Church was presented for approval to the General Assembly in an
end of session omnibus bill, a classic “pig in a poke” device to disorder the
entire Catholic Church. “The bill,” this
writer noted at the time, “was included under a group of 78 generic
legal umbrella concepts and entitled ‘modifying corporate forms.’ This manner
of authorizing bills is not unusual, but had the bill been titled ‘modifying
the apostolic structure of the Catholic Church, the title might have awakened
more interest among members of the judiciary committee.”
A massive rally at the Capital reminded the co-chairs of the Judiciary
Committee that certain proprieties – among them fidelity to the First Amendment’s
free exercise of religion clause, which at a minimum would prevent a
re-ordering of the apostolic nature of the Catholic Church – were bright lines
that should not be crossed with impunity. James Blaine, author of the rabidly
anti-Catholic Blaine amendment, was less artful than McDonald and Lawlor, both
of whom pointed out that their fingerprints could not be found on the bill,
which should have been properly identified, ventilated and killed in the
Judiciary Committee over which they presided. The rally reminder did not
prevent outgoing governor Malloy from awarding political preferments to both
co-chairs.
In his announced appointment of McDonald as Chief Justice of
Connecticut Supreme Court, and in McDonald’s appreciative acceptance, both
seasoned politicians mentioned – and not incidentally -- that
McDonald was gay. Since Malloy’s announcement, some politicians have suggested
that any opposition to the appointment, however reasonable, should be viewed as
indicating homophobia on the part of those insisting that a past legislator
should receive very close scrutiny. Nor, presumably, may one question
McDonald’s young age or his evident leftist political slant or his demonstrated
animosity to the Catholic Church or his lack of experience at the bar -- without
inviting the charge that one is anti-gay.
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