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McDonald And The Gay Question


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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