Op-ed: Why lawmakers must thoroughly vet Malloy’s chief justice nominee

Op-ed by Senator Len Fasano as it appeared in The Day 

When it comes to considering who will be the state’s next chief justice, lawmakers have an obligation to do more than rubber stamp whoever Gov. Malloy nominates. It’s the legislature’s duty to determine if the governor’s nominee is capable of leading the state’s Judicial Branch and respecting the constitutional limits of the Supreme Court that keep our government fair and just.

Unfortunately, instead of recognizing this legislative responsibility, some individuals have 1) wrongly characterized opposition to Justice Andrew McDonald, Malloy’s nominee, as pure politics and 2) urged senators not to review McDonald’s record but instead approve him simply because he’s the governor’s pick and it’s the politically safe decision.

It takes zero courage to vote yes to avoid political criticism and appease those with the loudest voices and the least knowledge. What takes courage is making decisions based on a definable record and what is in the best interest of the state.

Those who are misinformed have urged lawmakers to support McDonald simply because they believe that any opposition would be a dangerous turning point politicizing the nomination process. But that argument suggests the legislature should approve any nominee; and second, it ignores history. Gov. M. Jodi Rell’s chief justice nominee was derailed by Democrats for politics, forcing Justice Zarella to withdraw from consideration before voting even began. No one questioned his qualifications; they only wanted to stop Rell from nominating someone. This is not the case with Malloy’s nominee. The legislature is respecting the process which requires every lawmaker to cast an informed vote.

The same critics who accuse Republicans of “playing politics” purposely fail to acknowledge the real damage being done to our state’s judicial nomination process today. Republicans are not the ones who have injected big-money campaign style attacks, organized by lobbyists with financial interests, into what otherwise has been a respectful legislative review. We must question the credibility of those who accuse Republicans of being “political,” yet are silent on the actions of politically connected Democrats and high-powered lawyers using pricey television ads, robocalls, and intimidation tactics to try to sway a nomination for the state’s highest judicial position.

Not only Republicans, but also Democrats, have raised legitimate questions about McDonald’s decision-making process used to reach desired end results. When making a partisan argument, it’s easy to omit the fact that Democrats also made impassioned speeches on the House floor raising concerns about Justice McDonald, including his decision to sit on the death penalty case despite his closeness to the issue. Even supporters of the death penalty repeal have questioned the methodology behind that ruling, with one supporter once calling it “highly motivated reasoning” that was “based on abstract notions of justice instead of a fair reading of the law.”

Questions have also been raised about other cases. In the Richard Lapointe case, for example − whose murder conviction was overturned by the Supreme Court − the attorney who once argued Lapointe’s appeal, and was pleased with the end result, has called the process behind that ruling “terrifying” and “high-minded gibberish,” saying, “It’s as though the law took a holiday in this case.” While some friends of McDonald in the legal community have rushed in, or been pressured, to defend him, for anyone to say no legal experts have ever questioned his record is patently false.

Finally, there are those who argue that all lawmakers should support McDonald’s nomination because a “no” vote is politically risky in the November election. That position is not only offensive, but violates elected officials’ obligations to their constituents. Although constituents may not always agree with a legislator’s vote, they expect their lawmakers to make decisions based on an honest thoughtful process, not based on what is politically convenient. Complicity is not bravery.

Connecticut’s senators are continuing to examine and fully vet the methodology of McDonald’s decisions over the last five years to determine if he can respect the limitations of the Supreme Court as its leader. If Justice McDonald is not confirmed as chief justice, he will continue to serve as justice and have his voice heard on the Supreme Court.

But the legislature cannot elevate someone from teammate to team captain simply because their resume meets the requirements and they have backing from the governor. There are three branches of government for a reason. As legislators, we have an obligation to approve a chief justice nominee only if we feel they can do the job while respecting the limits of the branch they seek to lead.