Monday, March 12, 2018

McDonald And Connecticut’s Indentured Supreme Court

Objective court watchers may be amused by the notion that Connecticut’s Supreme Court has become politicized, especially since the court for some time has shown itself to be the indentured servant of the left wing of the Democrat dominated General Assembly.

As proof of this proposition, one need look no further than Governor Dannel Malloy’s choice for Chief Justice, recently approved by one vote in Connecticut’s House of Representatives. The McDonald nomination now moves to the State Senate, where confirmation is more doubtful.

In addition to being gay – a major plus in Connecticut, as witness McDonald’s unimpeded elevation from Director of Legal Affairs for the City of Stamford from 1999 to 2002, to Stamford Representative in the General Assembly from 1991 to 2003, to co-chair of the Judiciary Committee, along with Mike Lawlor, to Justice of the Supreme Court – McDonald has shown himself to be a committed partisan Democrat ideologue whose political attachment to Malloy, the most progressive chief executive in living memory, never wavered.

Since McDonald left the legislature to join the State Supreme Court, references have been made to him as “a former politician,” which begs the question: Is it possible for an ideologically committed politician to shed his political skin on entering what should be a non-partisan, apolitical and independent position as State Supreme Court Justice? Indeed, is the State Supreme Court itself a facilitating engine of progressive political purposes?

McDonald, it must be admitted, has had lots of political skin in the progressive political game.

The part played by the State Supreme Court in the abolition of Connecticut’s death penalty is a prime example of progressive legislatures and courts acting in concert to achieve an end result that could not be achieved by ordinary legislative or judicial means.

A Democrat supported death penalty abolition bill was voted down after a promised veto by then Governor Jodi Rell. The bill would have abolished the death penalty prospectively, exempting penalties imposed by multiple courts multiple times on 11 murderers awaiting punishment on death row, every one of whom had committed horrific crimes. Edith Prague, by no means a conservative legislator, said she could not in good conscience vote in favor of a measure that would have reversed the sentences of two of the death row prisoners who had murdered three women in Cheshire, a particularly brutal crime. The two parolees had raped a mother and her daughter and then set fire to their house, murdering all three victims after incapacitating the husband and father.

A virtually identical bill, also exempting the 11 death row prisoners, was signed into law by newly elected Governor Dannel Malloy three years later. That bill violated the rational for the abolition of the death penalty advanced by progressive Democrats, who had argued 1) that the penalty was not a deterrent to felony murder, 2) that life in prison was a penalty worse than death, and 3) that the penalty itself was unconstitutional cruel and unusual punishment.

There were serious holes in all three propositions.  If the penalty was cruel and unusual punishment for prospective murderers, was it not also cruel and unusual for the exempted death row prisoners? If the death penalty was not a deterrent, as anti-death penalty Democrats had argued at the time, no punishment could serve as a deterrent; were not those pressing such a doubtful and threadbare theory in fact arguing for the abolition of all crimes because no punishment could be shown to deter any criminal activity? The vanguard pressing for abolition was led by the co-chairs of the Judiciary Committee, Representative Mike Lawlor, later to assume a newly created position, Under Secretary for Criminal Justice Policy and Planning, and Andrew McDonald, Malloy’s nominee for Chief justice.

It was political muscle, not reason, that decided the issue. Following the legislative abolition of the death penalty, Republicans dissenting, the fate of the 11 prisoners on death row was tossed into the State Supreme Court.  And the Malloy court – six of the seven justices presently serving have been appointed by Malloy – found, in a stunningly stupid decision, that the death penalty in the case of the 11 death row prisoners should be vacated because “changing perceptions of the death penalty” had rendered it unconstitutional.  "Upon careful consideration of the defendant's claims,” Justice Palmer wrote for the majority, “in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."

In essence, the court had substituted itself for an elected legislative body that had been tossing the question on its horns only a short time before the court had overruled decisions made by the greatest deliberative body in Connecticut, the people’s court, which is what the General Assembly is.

The court’s rational was bunkum all compact, and Chief Justice Chase Roger said as much in a dissenting opinion in which she characterized the majority decision as “fundamentally flawed.” Rogers later affirmed the court’s decision in a related case, in which she argued that “the principle of stare decisis (one should stand by previous decisions) says the incorrectness of precedent is not by itself enough to overrule,” prompting a vigorous dissents from Justices Peter Zarella and Carmen Espinosa, who noted that during Rogers’ own tenure, the court has overruled its prior precedent at least 25 times. “I cannot fathom,” Zarella wrote in a lucid dissent, “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.” Indeed, even in Supreme Court decisions -- especially in Supreme Court decisions -- two wrongs should not make a right.

These twisted judicial decisions strongly suggest that politics already has polluted the much vaunted independence of the State Supreme Court, a turn of events that will not be remedied by the appointment of McDonald as Chief Justice. The foremost legislative agitator against the death penalty should have recused himself from any decision affecting Connecticut’s death penalty. He did not. And he did not do so because McDonald was unable to resist the undertow of his past ideological opposition to the death penalty when he and Lawlor were agitating against it as co-chairs of the Judiciary Committee.



Senator Len Fasano's pending no vote is interesting. He just now -- March 13, 2018 -- made an appearance on the Jim Vicevich show. 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.

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