Malloy: Senate Republican Vote Against McDonald Is ‘Partisan’

HARTFORD, CT— (Updated 6 p.m.) Once word began to leak out that Senate Republicans would be voting in a bloc against the elevation of Supreme Court Justice Andrew McDonald to chief justice, Gov. Dannel P. Malloy reached out to Senate Republican President Len Fasano.

Following a phone call, Malloy held a press conference to announce that McDonald’s nomination vote in the Senate would move forward Tuesday.

“I will not pull Justice McDonald’s nomination. I think he deserves a vote,” Malloy said.

He said McDonald is qualified and widely supported by the Connecticut legal community.

“We have heard time and time again that this is not about politics. We’ve been told this is not a caucus position. We’ve been told members were doing their own extensive research into Andrew’s decisions. Perhaps, all 18 Senators weren’t told directly how to vote, but I think it strains credulity to say that all 18 people in the caucus did own their homework weeks and weeks and all 18 happened to arrive at the same conclusion. A conclusion that is counter to all those lawyers, all those deans, all those editorial boards,” Malloy said. “This was always going to be a partisan vote.

Malloy said Fasano was “always going to vote ‘no’.”

McDonald’s nomination squeaked through the House by one vote. With Sen. Gayle Slossberg, D-Milford, deciding to recuse herself, Senate Republicans have a one-vote advantage and as such can defeat McDonald’s nomination on their own. It’s unclear if any Democratic Senators will join them.

Visibly upset at the defeat handed to his friend, Malloy said over his seven years as governor he has renominated every Republican appointee who came before him for re-nomination. Judges are re-nominated to their positions every eight years.

Malloy said he made those re-nominations even though he disagreed with their politics and in some cases the decisions they have rendered.

“I don’t believe in politicizing our bench,” Malloy said.

Fasano said he polled each of his members individually over the phone and each said independent of the others that they had problems with McDonald’s elevation to chief justice.

Fasano maintained that McDonald is qualified to be an associate justice, but he disagreed with his decision to second-guess the Habeas court’s decision to reject claims of racial disparity when it comes to the death penalty.

Yale Law Professor Dennis Curtis wrote Fasano Monday and said McDonald and Justice Fleming Norcott in writing a concurring opinion in that case and citing the disparity study were not asserting a final determination that there was racial disparity in Connecticut’s death penalty system “but rather that there was a basis for legitimate concern.”

In response, Fasano said he and Curtis will have to agree to disagree over what the concurrence stood for and how far it went.

Fasano still believes McDonald overreached in writing that concurring opinion.

But, aside from the death penalty case, Fasano said there are a number of reasons McDonald should not oversee the Judicial Branch as chief justice and he was unable to article many of the concerns because they were shared with him in secret.

He said a number of people involved in the judicial system, including lawyers and retired employees, called him to tell him McDonald wasn’t qualified but they were unable to testify because “they were afraid to speak on the record.”

Malloy’s spokeswoman Kelly Donnelly said that’s too convenient.

“Senator Fasano suddenly claims that his caucus position to unanimously oppose a fully vetted and unquestionably qualified nominee has received secret support from unnamed attorneys for undisclosed reasons,” Donnelly said. “Senator Fasano owes his constituents better than that.”

Malloy said the “damage that’s about to be done by Republicans serving in the Senate is unlike any damaged they have ever debated inflicting upon the judiciary.”

The governor believes when the legal analysis is done “they’re just wrong,” and “they don’t care about being wrong because they want to have a win. And they ignore the damage the win will give them to the judiciary.”

He said he’s re-nominated judges he’s disagreed with, including senior status judges who sometimes sit on Supreme Court cases because he didn’t “exercise the power” Republicans are seeking to exercise. He said he’s spoken with a number of potential judicial nominees and they’ve expressed concern about whether they will receive the same treatment as McDonald.

Malloy said he didn’t have an answer for them. 

Malloy was unable to say whether there would be any consequences for lawmakers who are also attorneys in private practice. Malloy said he hadn’t considered that.

Malloy also hasn’t considered who he will nominate to chief justice if McDonald’s elevation fails Tuesday.

The Senate is expected to vote Tuesday.

The video of Malloy’s 20 minute press conference is below.