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    Saturday, April 27, 2024

    In rejecting McDonald, Formica and Somers stuck with party

    If any Republican senators were going to break ranks and support the elevation of state Supreme Court Justice Andrew McDonald to chief justice, I thought it might be a couple of moderates in our own back yard, Sen. Paul Formica of East Lyme and Sen. Heather Somers of Groton.

    Unlike other senators, who early on made it clear they opposed McDonald’s promotion to the court’s top position — and with it the job of directing the Judicial Branch — Formica and Somers remained silent. Then last Monday, the day before the critical Senate confirmation vote, Republican Senate leader Len Fasano of North Haven announced all 18 members of his caucus would oppose McDonald’s elevation to chief justice.

    With the Senate split 18-18, and one Democratic senator having recued herself, McDonald’s nomination was doomed. In the end, the vote was 19-16, with one Democrat joining the Republicans in opposition. Unlike several of their colleagues, neither Formica nor Somers rose to explain their reasons for voting against the appointment.

    The nomination fight leading up to that vote was unlike any Connecticut had ever seen for a judicial appointment.

    If Formica and Somers were making an electoral calculation, the smart move would have been a vote to confirm. While that would have disappointed party conservatives, the Republican senators likely would not have lost much support in November's election.

    Election impact

    On the other hand, voting as they did against McDonald could cost Formica and Somers the votes of some Democrats and liberal-leaning unaffiliated voters who in the past crossed ideological lines to support them.

    The election of President Trump, the national Republican Party’s hard-right positions on immigration and the environment, its unwillingness to consider gun control and its seeming disinterest in the #MeToo movement has Democrats and younger, progressive-minded voters fired up. Rejecting McDonald’s promotion smacks of the obstructionist politics those voters loathe about the Republicans in Washington. While both parties have made the judicial appointment process too political, U.S. Senate Republicans took things to a new low in 2016 in keeping a U.S. Supreme Court seat vacant for an entire year rather than consider President Obama’s nominee.

    Gov. Dannel P. Malloy and Democrats have made much of the fact that McDonald would have become the first openly gay person to ascend to the position of a state Supreme Court chief justice, and have suggested discrimination played a role in the strict review and ultimate rejection of McDonald.

    Knowing Formica and Somers, I cannot imagine sexual orientation playing any role in their decisions. Their votes did, however, prevent this historic first and that could be used against them in the general election. Some voters will resent it.

    Since both senators are strong candidates for re-election, perhaps their primary motivation was party loyalty and supproting their Senate leader, Fasano, who seemed obsessed with building the case against McDonald, even though he had voted to confirm him as a justice in 2012.

    And that’s the funny thing. Republicans railed against McDonald’s alleged judicial activism and his vote in the 4-3 decision that extended the prohibition against the death penalty, which the legislature had invoked for all future murders, to the men already on death row as well. But McDonald remains on the court. In the process, they missed an opportunity to seat a Republican.

    Had the Senate last Tuesday affirmed McDonald as chief justice, Malloy was ready to appoint a Republican, former senator and current Superior Court Judge Andrew W. Roraback, to replace him.

    No politics

    When I caught up with them after the vote, both Formica and Somers said political calculations had nothing to do with their decisions to reject McDonald’s appointment. It’s funny how often politicians say that’s the case.

    Formica said Fasano made a good case for McDonald’s failure to show judicial restraint and follow the law in several cases.

    “Sen. Fasano laid out some of the fine points of the law that I think we had concerns with,” Formica said.

    Less persuasive for Formica, apparently, was the near unanimous support for McDonald in the legal community.

    Somers said McDonald was too much of a political animal to be the head of the judiciary. McDonald was a former state senator and served as Malloy’s legal counsel, both as mayor of Stamford and as governor, before his elevation to the Supreme Court.

    When someone from McDonald’s old law firm, Pullman & Comley, formed a lobbying group to push his appointment as if it were an election, Somers said, “It just further substantiated the concerns that I had.”

    Indeed, that campaign of robocalls and attack ads may have backfired on the nominee by strengthening opposition.

    Of the suggestions that bigotry was playing a part in the process, Somers said, “It was grossly offensive.”

    Both senators expressed concerns about McDonald’s disposition and, in particular, the confrontation described in an affidavit submitted by state Sen. Gayle S. Slossberg, a Democrat.

    Slossberg, the Democrat who recused herself, recalled a time when both were senators and McDonald “started screaming directly at me at the top of his lungs in a very personal and shocking manner.”

    Her husband, a lawyer, had had a legal run-in with McDonald before he became a justice.

    “He was personally offensive,” Formica said of the incident.

    “I put much emphasis on the affidavit,” Somers told me.

    Yet no pattern of such behavior by McDonald was demonstrated during the review process.

    It may be over, but this fascinating, fierce and politicized (except for Formica and Somers, of course) confirmation fight could well have implications in the November election and for the handling of future judicial appointments. Sort of like Washington. Now that’s a distressing thought.

    Paul Choiniere is the editorial page editor.

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