POLITICS

Interim Appointment For McDonald Would Allow Malloy To Bypass Legislature

Think of it as the Andrew McDonald nuclear option.

Rather than potentially see his longtime friend and chief justice nominee go down to defeat in the state Senate, Gov. Dannel P. Malloy could use a little-discussed maneuver to appoint Andrew McDonald on an interim basis after the current legislative sessions ends in June.

The unprecedented move would forestall a decisive vote on McDonald’s nomination in an election year, testing the political will of legislators and parliamentary rules in the split Senate.

The nomination of McDonald, who stands to become the nation’s first openly gay chief justice, squeaked through the House by a single vote Monday. Just one Republican backed McDonald, while five Democrats opposed him.

Senate Republican Leader Len Fasano frowned upon the idea of Malloy, who is not seeking re-election, trying to bypass the Senate.

“He could put Andrew on interim over the summer and let him sit there until January and see what happens,” Fasano said. “Certainly, that’s an option for the governor. I think that’s trying to skirt the issue now. I think the process should go through.”

The end-around would require Malloy to withdraw McDonald’s nomination, something the governor has said repeatedly that he would not do, including in an interview Thursday with the Courant.

“This is a Republican grudge match,” Malloy said. “I’m trying to save the courts. They’re trying to tear them down. They will permanently change and limit the number of people who will be willing to serve as a judge in the state of Connecticut.”

McDonald declined to comment Thursday.

Malloy said McDonald’s sexual orientation has factored into the GOP opposition to McDonald, who previously served as the governor’s general counsel.

“You will find that the folks who voted against extending gender protections for individuals are also leading the fight against Andrew McDonald,” Malloy said. “Some of them have a track record of being anti-gay. That reality, that anti gay-animus can’t be separated from the other votes.”

Republicans say their opposition to McDonald stems from his judicial activism and his role in commuting the death sentences of the 2007 Cheshire home invasion attackers to life in prison. House GOP Leader Themis Klarides of Derby condemned Malloy’s comments.

“I have never been so offended in my life on behalf of myself and our Republican caucuses,” Klarides said. “We have a long history of supporting gay rights, gay marriage, LGBTQ issues, et al. There is no such animus. It is his excuse because they are not getting their way.”

Malloy said he doesn’t know if McDonald has enough votes to win approval of the Senate, where Democrats and Republicans negotiated a power-sharing agreement two years ago. Each party controls 18 seats, the first time the chamber has been deadlocked in more than a century.

The recusal of Milford Democrat Gayle Slossberg has dealt McDonald’s nomination a serious blow, however. The senator and her husband have clashed with McDonald, who was overwhelmingly confirmed as an associate state Supreme Court justice in 2013.

Senate President Pro Tempore Martin Looney, D-New Haven, vowed to stay the course with the confirmation process.

“The Senate will hold an up-or-down vote before the end of March,” Looney said. “Senate Republicans have a choice; they can choose a purely partisan path in order to reject this thoroughly qualified and historic nominee or they can vote for a brilliant and thoughtful jurist. It is that simple.”

The statutory language for an interim appointment isn’t ironclad. It says the Judiciary Committee “may” hold a meeting to approve or disapprove an interim appointee by a majority vote within 45 days. The law allows for a 15-day extension and gives the committee chairmen of both parties the authority to call a meeting. Any appointment that is not voted on in the 60-day window is considered an approval.

“I think it’s pretty clear the governor has the right to make a recess appointment and, unless there’s a disapproval, it goes into effect,” said state Rep. William Tong, D-Stamford, the Judiciary Committee’s co-chairman.

Last month, a Judiciary Committee vote ended in a 20-20 stalemate, resulting in a negative report on McDonald’s nomination to the full legislature. The House voted to reject the report and take up the appointment, however.

Tong said he does not expect Malloy to try to bypass the Senate.

“There’s no good reason to block it,” Tong said. “If we go down this partisan road, it ends in a very ugly place.”

Klarides said there needs to be a resolution.

“If Justice McDonald’s nomination for chief justice does not pass the Senate, I would assume the governor would quickly nominate someone else and continue to move this process along,” Klarides said.