Gov. Chris Sununu’s re-nomination last week of Attorney General Gordon MacDonald to be the next chief justice of New Hampshire’s Supreme Court came as no surprise, though its outcome seems likely to be very different.
Sununu picked MacDonald to fill the vacant seat in June 2019, but the nomination foundered when it failed to get through the Executive Council. At the time, the council was controlled by Democrats, and MacDonald’s confirmation went down on a party-line 3-2 vote. Outraged, Sununu chose getting his way over fulfilling his responsibility to fill such a critical judicial vacancy and left the seat open and the state’s highest court shorthanded for the next 18 months. Whether motivated by pique or an implausible belief he could not find another qualified candidate in the state who would get the council’s approval, his approach paid off when control of the Executive Council flipped to the Republicans in November’s election.
At the time the nomination failed, we commented in this space that, although MacDonald would not have been our preference, the Executive Council was wrong to oppose the governor’s nomination on mainly ideological and political grounds. In our view, potential justices should be measured on their professional qualifications and impartiality and whether they will be guided by the law and ignore political pressures. Instead, the Democratic councilors opposing MacDonald focused more on speculating how he might rule on reproductive rights should the U.S. Supreme Court abandon its Roe v. Wade ruling, or on voting rights of college students; important issues, to be sure, but not determinative of his professional chops.
With MacDonald nominated anew, our view remains that partisan litmus tests have no place when the Executive Council takes up his nomination. Instead, the council should focus on MacDonald’s qualifications and steer clear of assessing how he might rule on any number of ideological issues. For example, Councilor David Wheeler of Milford, who makes no secret that he would oppose any nominee who, in his view, is insufficiently “pro-life” or is weak on gun-rights issues, has no more business basing his vote on those issues than the Democratic councilors had in raising political-issue objections to MacDonald’s nomination two years ago.
Even though Republican control seems to make MacDonald’s confirmation a sure thing, we urge the council to perform its duty to examine his qualifications seriously. Certainly, he has a longer professional record as attorney general than before that should be vetted by the council before acting. And his membership, as the state’s chief law enforcement official, in the Republican Attorneys General Association also deserves focus. That organization, whose stated mission is to elect Republicans as state attorneys general, has links to the Rule of Law Defense Fund, a so-called “dark money” political fundraising arm that paid for robocalls around the country to encourage participation in last week’s protest rally in Washington that led to a mob assault on the Capitol. Chillingly, the calls stated participants would “march to the Capitol building to call on Congress to stop the steal.”
When asked about his membership in the AGs association, a spokesperson on MacDonald’s behalf said that it’s automatic simply because he’s a state attorney who’s a registered Republican, adding that he’s not an active member and ceased participating in the organization in 2017. MacDonald also issued a statement denouncing the robocalls and condemning the violence “in the strongest possible terms.” In response, Gov. Sununu promptly tweeted out that MacDonald’s statement “speaks for itself” and expressed continued confidence in his nominee.
The situation clearly warrants examination beyond only MacDonald’s statement and that of his spokesperson. Newly elected Executive Councilor Cinde Warmington, D-Concord, has raised questions, and state Democratic Party Chairman Raymond Buckley has filed a right-to-know law request with the Department of Justice seeking information on any communications MacDonald may have had with the Republican AGs group or its dark-money arm. The inquiry is a legitimate one and should be pursued.
If it should turn out MacDonald knew or should have known the organization was actively seeking to foment overturning the certified election results and to undercut the rule of law, including the authority of state and federal courts, he clearly will lack the qualifications and judgment New Hampshire deserves in its highest jurist. But if his involvement was as he has described it, and if no further concerns bearing on his professional merit should emerge in his confirmation proceedings, his nomination should focus on his professional qualifications, not his ideology.