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McDonald stands up for judicial independence

September 26, 2018

GREENWICH — Judicial independence is under attack by politicians at the federal level and across the country, a state Supreme Court justice warned a local crowd on Wednesday.

“Their message is clear: If you make hard decisions in difficult cases that we disagree with, we will damage you and damage your branch of government,” State Supreme Court Associate Justice Andrew McDonald told the Retired Men’s Association of Greenwich.

“I submit that the rule of law demands more,” he said. “Judges must be insulated from political pressure and threats rather than being treated as hostages in a raging political debate.”

But McDonald, whose nomination to be chief justice on the state’s top court was derailed in the state Senate, declined to discuss the headline-making case of Brett Kavanaugh, the embattled nominee to the U.S. Supreme Court.

A number of women have stepped forward to accuse Kavanaugh of sexual misconduct, and the Senate Judiciary Committee is slated to hold a hearing Thursday with testimony from the nominee and his initial accuser, Christine Blasey Ford.

Democratic state senate candidate Alexandra Bergstein asked a question about Kavanaugh’s nomination, but McDonald did not take the bait and replied with a “no chance” about giving his personal views on the matter before elaborating a little.

“The appointment process is ultimately a political decision,” said McDonald, a Stamford resident. “I would imagine there are 100 senators who are getting earfuls on both sides from their constituents, and those senators are required to cast a vote consistent with the will of their constituency. If they misjudge that will, they need be able to answer for it and face the possible risks during an election.”

During his remarks, McDonald brought up his own controversial and ultimately unsuccessful nomination to be chief justice of the Connecticut Supreme Court earlier this year. Nearly every Republican in the legislature voted against McDonald, a former Democratic member of both the state House and Senate and a close ally of Gov. Dannel Malloy. He remains an associate justice on the court, but his defeat to be chief justice was unprecedented.

“As far as anyone has been able to discern, no judicial nomination in Connecticut history had devolved into such a partisan feud before,” McDonald said. “I truly hope the bitter political horrors of Washington concerning judicial nomination have not grabbed a foothold here in Connecticut. We are better than that.”

McDonald narrowly survived a 75-74 vote in the House but was defeated 19-16 in the Senate, amid Republican claims of “judicial activism” on McDonald’s part. Democratic leaders blamed homophobia, dislike for Malloy and threats to judicial independence.

McDonald admitted he did not want to spend a lot of time rehashing his failed nomination because “I didn’t particularly enjoy living (it) the first time.” But he said it was an example of politics improperly interfering with the state’s judiciary.

The only Republican who voted in favor of his confirmation, state Rep. Livvy Floren, R-149, was in attendance Wednesday and he praised her as “courageous and fiercely independent.”

When it comes to the loss of judicial independence, McDonald also brought up the case of Jane Emons, whose career as a Connecticut Superior Court judge ended earlier this year when the state House failed to take a vote on her reappointment and allowed her term to expire.

Many may agree or disagree with Emons’ decisions during her time on the bench, McDonald said, and there had been heavy criticism of some of her work in family court. But a pocket veto of a judicial reappointment set a bad precedent, he said.

The case has made some judges fearful of being thrown out of office any time they make a discretionary call, McDoanld said.

“What happened to her was in some ways more disappointing and alarming than what happened to me,” he said. “At least I got a vote.”

Connecticut’s system of not electing judges, except for probate judges, drew praise from McDonald. A total of 38 states in the country elect their justices, but Connecticut has a merit-based system that McDonald said promotes judicial independence and helps insulate judges from the influence of special interest groups, campaign fundraising and community pressure on hot button issues.

Appointed and approved as a Supreme Court justice in 2013, McDonald is serving an eight-year term. He will then come up for reappointment before the state legislature.

McDonald cited other challenges to the judicial independence, including attacks by national leaders on judges based on their ethnicity and sexual orientation; an effort by Kansas lawmakers to strip the state courts of the jurisdiction to rule on education in retaliation of a court decision that the state legislature was underfunding public schools; and a proposed Missouri constitutional amendment that would have allowed voters to decide whether a federal law was unconstitutional.

If that amendment had passed in Missouri, McDonald said, state courts would have been precluded from enforcing the federal law or hearing cases involving it.

“Democracy is not a spectator sport,” he reminded the crowd, urging them to be involved in protecting an independent judiciary. When asked what a citizen should do, McDonald said they must speak up to stop this “raw, new and dangerous development” being fanned by “restless and reckless rhetoric from some national leaders and commentators.” He told them to get involved and reach out to elected leaders.

“If the judges in our state and across the country are going to provide fair, impartial and equal justice they need people like you to stand up and be heard,” McDonald said.

kborsuk@greenwichtime.com

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