Malloy pick for chief justice grilled at confirmation hearing

Hartford — Supreme Court Justice Andrew J. McDonald, a close friend of Gov. Dannel P. Malloy and the nominee for chief justice of the state Supreme Court, was questioned for hours by Republican lawmakers Monday as his confirmation hearing got underway before the General Assembly's Judiciary Committee.

The 51-year-old associate justice from Stamford, a former Democratic state senator and longtime friend and adviser to the governor, said in an opening statement that he would continue outgoing Chief Justice Chase T. Rogers' efforts to bring transparency to the Judicial Branch, work to make aging courthouses more secure, enable litigants to resolve more court cases on line and improve the branch's website. Malloy nominated McDonald to the Supreme Court in 2013.

"As the second most senior member of the court, I believe that my experience as an associate justice has prepared me well to serve as the Chief Justice of our state's court of last resort, should I be fortunate enough to be confirmed," he testified.

McDonald would be the nation's first openly gay chief justice. With Malloy officiating, he married Charles Gray in 2009 after he helped achieve passage of a civil union law that paved the way for same sex marriages.

In addition to hearing cases and writing opinions, the chief justice serves as the administrative head of the Judicial Branch, which operates 40 state courthouses, employs more than 3,000 people and has a budget of more than $478 millon. McDonald admitted he had only been briefed on budgetary issues annually as an associate justice.

If confirmed to an eight-year term, he would be in a position of power long after Malloy, who is not seeking re-election, moves out of the governor's mansion. That  fact was not missed by Republican lawmakers on the Judiciary Committee who studied opinions and even footnotes authored by McDonald prior to questioning him and delved into his actions and statements as legal adviser to the governor and as a lawmaker.

"It's our job up here to do a searching review of the record, behavior for any judicial nomination, but particularly for the chief justice, because it's the head of the Judicial Branch," said state Rep. Arthur J. O'Neill, R-Southbury, before launching into his list of questions.

Asked by several Republicans whether he is an "activist" jurist, McDonald said he is not. Pressed about controversial opinions in which he was among the high court's majority, including State v. Lapointe, he said he always applied the law, but often in his writing gave a "nod and a wink to the legislature saying they could address it if it didn't come out they way they thought it should." The court overturned Richard Lapointe's 1989 conviction for murdering his elderly grandmother, finding that Lapointe, who was mentally disabled, had been denied the opportunity to present evidence that supported his innocence.

 O'Neill asked why McDonald recused himself in CCJEF v. Rell, a 2005 case challenging how state schools are funded. The high court earlier this year ruled that the current method of school funding is constitutional. McDonald said that while serving as Malloy's chief lawyer, he had tried to facilitate talks between the coalition that brought the case and the state's Attorney General's Office, which defended it.

O'Neill said he was puzzled that McDonald was mediating the case as the governor's attorney. McDonald said he was "puzzled as well," but that the mediation was not productive and the litigation proceeded.

O'Neill asked why McDonald didn't disqualify himself from the high court's 2016 opinion on the death penalty. McDonald had voted with the majority in State v. Santiago, holding that it would be unconstitutional to execute inmates left on death row — including two men who had carried out the vicious home invasion/murder of a mother and two daughters in Cheshire — after the legislature abolished the death penalty in 2012.

O'Neill quoted a 2009 statement in which McDonald, then a state senator and co-chair of the Judiciary Committee, spoke out against the death penalty, saying, "There are legislative moments that say as much about us as a people and a state." It appeared, O'Neill said, that McDonald had formed an opinion on the death penalty, and spoke about it publicly, "very far in advance."

McDonald cited a national treatise that holds that a judge who had previously served as a legislator is not required to recuse himself from decisions involving laws he was involved in crafting. Also, he said, the Santiago decision, which involved inmates on death row after the death penalty had been abolished, did not address the constitutionality of the death penalty itself.

Under questioning about his legislative career by Republican state Sen. Joe Markley of Southington, who is running for lieutenant governor, McDonald admitted he regretted co-sponsoring a bill to alter the way the Catholic church handles its finances without consulting church bishops and other leaders. The 2009 proposal, written in response to embezzlement cases within the church, was withdrawn amid heavy criticism. The Catholic League, calling the bill "one of the most blatant violations of separation of church and state in American history," has notified lawmakers that McDonald is not fit for promotion.

In his opening statement, McDonald said he is "committed to the culture of openness, accountability and transparency that Chief Justice (Chase) Rogers promoted." He said the Judicial Branch needs to enhance the branch's technological capabilities so the public has more opportunities to resolve legal disputes online. He said the state's courthouses need to be made functional and safe, singling out busy courts in New Haven and Bridgeport as examples of old buidings that present "significant security concerns."

McDonald said the branch needs to modernize existing courtrooms, none of which are equipped, as are federal courts, "to handle a complex electronic trial." He said he would like to focus on adapting the Judicial Branch's website for easier access on smart phones and tablets.

 k.florin@theday.com

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