Tong misplays bigot card in attack on Herbst

This past Monday, Gov. Dannel P. Malloy announced his intention to nominate Justice Andrew J. McDonald to replace the retiring Chief Justice Chase T. Rogers on the state Supreme Court. Subsequently, a Republican candidate for governor, in a botched news release, took the opportunity to toss a few political rocks. And then a Democratic representative, who is supposed to sit in objective judgment of the nomination, lost his mind.

Washington, it appears, is not the only place where politics have become very strange.

The Republican candidate in question is Tim Herbst, the former Trumbull first selectman, and one among a large field of candidates seeking the Republican nomination. He criticized the planned McDonald appointment as political. Embarrassingly, the Herbst campaign misspelled the justice’s name as “MacDonald” throughout the entire news release.

Aside from that misstep, Herbst’s criticisms were unsurprising. McDonald has followed an unusual path to his nomination as chief justice. When Malloy nominated him in December 2012 for a seat on the Supreme Court, he had no experience on the bench. He was politically connected.

McDonald had served as the director of legal affairs for Stamford — 1999-2002 — when Malloy served as mayor of that city. From 2003 to 2011, McDonald was the state senator from the 27th District of Stamford and Darien, and spent time as chairman of Judiciary Committee.

After Malloy’s election in 2010, McDonald joined the administration as general counsel, serving in that position until the legislature approved his appointment to the Supreme Court.

There was criticism at the time that Malloy was passing over more qualified jurists to appoint his friend to the prestigious post. No surprise then that Herbst, a Republican looking to dump on Malloy to boost his own credibility in the GOP, would resurrect these criticisms. Herbst played a popular conservative card, suggesting McDonald would be an activist chief justice, following a political rather than a legal agenda.

“Justice MacDonald (sic), as a former state senator and political advisor to Dan Malloy, demonstrated a partisan streak that continued as Gov. Malloy’s Chief Legal Counsel for two years,” Herbst said in the release. “The interpretation of our laws should always remain blind to the influence of politics or even the appearance of influence and that is why I am calling on legislators … to support a different nominee for Chief Justice.”

Tossing more red meat to conservatives, Herbst pointed to McDonald’s critical vote in State vs. Santiago. That 4-3 decision ruled the death penalty unconstitutional in Connecticut.

It was in response to Herbst’s comments that Rep. William Tong, D-Stamford, went off the rails. As House chairman of the Judiciary Committee, Tong will preside over the hearing on the nomination.

“I am disgusted by Tim Herbst’s bigoted attack on Justice Andrew McDonald. I know that Herbst is trying to ride a wave of hate and division to the governor’s mansion he so covets. But there is no place in Connecticut for Herbst’s dog-whistle tactics to try to smear … a nominee for chief justice,” Tong said in his own statement.

“I know what a hateful attack on Andrew McDonald looks like,” Tong added.

Where did that come from?

What appears to be going on is that McDonald is an openly gay man. Tong wants us to believe that Herbst’s criticisms of McDonald’s nomination for chief justice — his contention that McDonald would be an activist jurist who would let “personal and political opinions” influence his rulings — are an anti-gay dog whistle.

Maybe I missed something, but Herbst’s comments appeared to line up with traditional conservative versus liberal debate when it comes to the role of the courts.

In announcing McDonald’s nomination, Malloy noted that if confirmed, “He will become the first openly gay Supreme Court Chief Justice of any state.”

That would be historically significant, certainly. Yet I am sure Justice McDonald would be the first to say that his sexual orientation should play no role in assessing his qualifications. Critics should be free to challenge those qualifications without being called “hateful.”

“As House chairman of the Judiciary Committee, I would normally reserve any extensive comments … until the nominee’s public hearing,” Tong said in his statement.

He should have followed his own advice.

Instead, Tong made clear his mind is made up, saying about McDonald, “No lawyer in Connecticut is more qualified to serve as chief justice or in any legal role.”

More qualified than Senior Justice Christine S. Vertefeuille, who has served on the Supreme Court since 2000? Or Justice Richard N. Palmer, a former federal prosecutor, chief state’s attorney and 24-year veteran of the high court?

My take is that the legislature should affirm a governor’s judicial choices unless there is clear evidence they are unqualified, and that does not appear to be the case with McDonald. But let the process play out without pre-determination or broad-brush charges of bigotry.

Paul Choiniere is the editorial page editor.

Editor's note: This article was updated to clarify that Tong is a House member and chair of the Judiciary Committee.


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