Governor Dannel Malloy’s Nominee for Chief Justice of the
Connecticut Supreme Court, Justice Andrew McDonald, was sent to the General
Assembly with a negative recommendation. The nomination passed in the House
by one vote, where Democrats have a six member edge over Republicans, and is
now headed towards the Senate, which is split 18-18 among Democrats and Republicans.
The Republican leader in the Senate, Len Fasano, said on a radio talk show
recently that he is inclined to vote down the nomination. After viewing all McDonald's opinions -- and
also interviewing McDonald -- Fasano feels that McDonald is prone to affirming
a possibly flawed decision if the decision contains a partial narrative that
supports his apriori views. For instance, McDonald believes that the
death penalty may be racist because it falls disproportionately on blacks, a
doubtful datum. If a decision to abolish the death penalty supported that view,
McDonald would be inclined to support it. That mode of interpretation violates
judicial norms and is reason enough to vote down McDonald's nomination. Is
Fasano right?
Fasano’s view is trustworthy; it bears weight. McDonald’s
political prejudices – he is an unapologetic progressive – run deep. The best
judges do not import their a priori
affirmations and legislative prejudices into their decisions, because doing so
clouds the proper focus necessary to render just decisions.
The death penalty
decision handed down by the Supreme Court, which vacated felony convictions for
the 11 prisoners awaiting justice on death row, was tortuous and wrongly
decided. The Chief Justice at the time the decision was handed down said very
plainly in a dissenting opinion that the majority decision was fundamentally
wrong.
On a following appeal in the case of another death row inmate, Chief Justice Chase Rogers declared that the doctrine of stare decisis should apply. The court
– having wrongfully decided to abolish the death penalty in the first instance
– never-the-less was right in making the same wrong decision in a second case
because stare decisis should in all instances apply. The court’s second
decision – which effectively killed the death penalty -- wrong
in the first instance, was right the second time around because, the Chief Justice wrote, courts should as a matter of principle defer to prior decisions.
This was
Alice in Wonderland reasoning, bitterly and lucidly contested in two dissenting
opinions. Justice Carmen Espinosa
pointed out that the Connecticut Supreme
Court had overruled prior precedent 25 times during the Chief Justice’s tenure
on the bench, and Justice Peter Zarella's
dissent cut to the quick : I cannot fathom how Chief Justice Rogers and Justice
Robinson believe they respect the rule of law by supporting a decision that is
completely devoid of any legal basis or believe it is more important to spare
this court of the purported embarrassment than to correct demonstrable
constitutional error.” What a tangled web we weave when first we practice to
deceive, eh?
Dannel Malloy has now appointed six of seven justices to the
Supreme Court. At a minimum, this means that dissent on important decisions will
be muted – like minds think alike. Every decision made by a court so packed by
a single governor should be carefully scrutinized; but who is at home on
Connecticut’s Supreme Court bench to do the scrutiny – McDonald?
Two of the 11 death row prisoners whose sentences have been
changed to life in prison were responsible for a horrific home invasion in
Cheshire. The two paroled prisoners beat the head of household senseless with a
baseball bat, forced the wife to withdraw money from a bank, raped the wife and
one of two daughters and then murdered all three by setting their house on
fire. Dr. William Petit, whose whole family was brutally murdered, is now a
state Representative in Connecticut's 22nd House District.
Both co-chairs of the Judiciary Committee, McDonald and Mike Lawlor, now Governor Malloy’s Under Secretary for
Criminal Justice Policy and Planning, had successfully agitated for the
abolition of the death penalty – even for such horrific crimes as were
committed in Cheshire. As a private citizen and victim, Petit vigorously
opposed abolition, but in the end his opposition and those of others in the
General Assembly was overcome by a progressive alliance in the General Assembly
and obliging members of the State Supreme Court, McDonald among them. This is
what Representative Petit said about McDonald as his nomination for Chief Justice wended its way through the House chamber: “Given
what I feel is this bias, I am concerned about confirming a justice who has
appeared to want to push a personal agenda and not directly interpret our
laws.”
The scale has not been made in which Petit’s tears can be
weighed. Tears are wasted on McDonald, who is no victim.
Progressives both in
the General Assembly and the Supreme Court have had great difficulty in
determining victims from aggressors. As a legislator, McDonald, his conscience
unruffled, voted against a “three strikes and you’re out law” endorsed by
Republicans in the General Assembly in direct response to the murders in
Cheshire.
McDonald was serving as co-chair of the Judiciary Committee, along
with his Tonto, Mike Lawlor, when the two constructed a bill that, had it
passed, would have destroyed the apostolic nature of the Catholic Church. The two
shed no tears for Catholics. When they were caught out, both insisted their
bill had been crafted in response to the concerns of a constituent who later
said he had never seen the final form of the bill. The destructive bill was
withdrawn after nearly five thousands petitioning Catholics showed up on the Capitol lawn to protest
the abolition of priestly authority.
When he left the State House, Lawlor fell
into a featherbed provided by Malloy. As Under Secretary for Criminal
Justice Policy and Planning, the state’s penology guru initiated a “get out of jail early program” for oppressed prisoners. His credits were parceled out retrospectively to
prisoners, many of them violent, who did not jump through the hoops necessary
to receive the credits. Among them was a gangbanger who had burned his mattress
in prison, Frankie "The Razor" Resto, so called because he used razors to shake down drug dealers. On the outside, "The Razor"procured a gun and shot to death a shopkeeper who
had obligingly handed over to him the cash from his register. The best victims advocate the state ever had, Michelle Cruz, found herself without a job when she consoled the victims in public and pointed
out failings in Lawlor’s ill administered program.
Who are the victims here –
surely not McDonald and Lawlor?
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