The question has been asked: Should Governor Dannel Malloy’s
appointment of Supreme Court Justice Andrew McDonald as Connecticut’s Chief
Justice be rejected because McDonald is gay?
The answer is no, and it is highly unlikely in Connecticut’s Democratic top-heavy General Assembly that the nomination would be rejected for such a reason. The flip side of the question is: Should the General Assembly approve Malloy’s nomination because McDonald is gay? The answer is no.
On the gay question, it should be noted, Republican
legislators have been accommodating. Connecticut legislators in 2009 agreed to
replace all statutory references to marriage with gender-neutral language,
a variant of a bill sponsored by McDonald and his Judiciary Committee co-chair
in the House, Mike Lawlor, who, like McDonald, also is openly gay. The General
Assembly voted to approve the measure – 100-44 in the House and 28-7 in the
Senate. At first promising a veto, Republican Governor Jodi Rell signed the
bill into law in April of that year.
McDonald has emerged from a Judiciary Committee hearing with
a negative vote on his nomination, which sends the matter to the full General
Assembly. If approved, several news
reports have announced, McDonald would be the first gay State Supreme Court
Justice in the nation. Here is a lede from a piece in a Hartford paper:
“Already bracing for a fight over his nomination, McDonald has become the
target of an anti-Semitic and anti-gay website that says he is advocating a
‘non-Christian’ and ‘un-American’ LGBT agenda. If confirmed, McDonald, a close
ally of Malloy, would be the first openly gay chief justice in the nation.”
It’s always comforting to be first in something. During the
entire Malloy administration, Connecticut has been last, or nearly last, in
many important indices. But sexual orientation is not a sufficient reason to
nominate or select a Supreme Court Justice.
Are McDonald’s Connecticut legislative critics homophobic?
They are not. Much of the criticism swirling about McDonald’s
ankles is justified. But these days sexual orientation serves as a breastwork
that effectively fends off those secure behind it from necessary critical
analysis. The mad scramble to duck behind the protective shield of victimhood
is apparent everywhere in Western society. Having established victimhood
status, one is placed, like Caesar’s wife, above criticism.
Some critics say McDonald is too young and inexperienced for
the post. McDonald is 51 years old. Justices serving on Connecticut’s Supreme
Court are required to step off the bench at age 70. Nationally, “the projected age when a justice will leave
the U.S. Supreme Court, according to a 2017 Bloomberg piece is now about 83—that’s a 10-year increase from the 1950s.” And younger justices
are now being appointed to the court.
Calculating with the Bloomberg figures, McDonald, if
affirmed as Chief Justice, is likely to serve in that position about two decades.
The Chief Justice of Connecticut’s Supreme Court, in addition to his duties at
bar, is the officiating head of Connecticut’s entire court system, the Caesar
of a branch of state government beyond the reach of election. Should a Chief
Justice use the powers of his office to effectively repeal a popular view on an
issue that has been affirmed by the elected representatives of the people – the
constitutional viability of capital punishment, for instance -- he cannot be
removed from office. We are stuck with our judicial Caesar for the duration of his
term, and that is why there has been a traditional reluctance to
elevate young Justices to the position of Chief Justice.
No doubt some proponents of McDonald will view an objection
of this kind as a “dog whistle” to round up votes against McDonald because he
is gay. In an atmosphere in which victimhood is a ticket to advance, this seems
a profitable political strategy. But those advancing the charge must in this
instance explain how McDonald has moved so quickly, unimpeded, up his stellar
career ladder. When Malloy made a point of mentioning that McDonald, if
confirmed by the General Assembly, would be the first gay state Supreme Court
Chief Justice in the nation, he was not offering McDonald to the General
Assembly as a burnt sacrifice.
The chief objection to McDonald seems to be that he would,
if confirmed, reign as an activist Chief Justice, and the broad questioning of
McDonald during his appearance before the Judiciary Committee was perfectly
appropriate. The vote to approve
Malloy’s nominee, State Senator John Kissel said, will come down to a decision by
legislators on whether McDonald “is an activist or a strict constructionist.” No one will doubt that McDonald was certainly activist legislator. Activism is a portmanteau one does not generally check at the desk when entering different political professions.
If Connecticut’s Supreme Court were not already highly politicized,
the question concerning activism would not be quite so important. In addition
to plunging Connecticut into economic despair, chasing out of state entrepreneurial
capital and young entrepreneurs, and imposing outrageously high taxes on the
state’s wealth and tax producing working class, Malloy’s destructive legacy
will continue far beyond the end of his term in office -- partly because highly
politicized activist and progressive courts generally support the political agendas
of activist and progressive chief executives and legislators.
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