Holding a slim majority, the three Democrats on the N.H. Executive Council rejected the nomination Wednesday of Attorney General Gordon MacDonald to become the state’s next Supreme Court chief justice.
Though we found the prospect of MacDonald as chief justice unappealing, we believe they were wrong to do so.
MacDonald’s nomination by Gov. Chris Sununu was certainly not without issues. MacDonald has never served on a bench — nor had the previous two Sununu nominees, Patrick Donovan and Bobbie Hantz Marconi, both of whom now sit on the court. That would mean the majority of the five-member court would have no judicial experience. That’s by no means disqualifying, though it seems a disconcerting trend.
As attorney general, MacDonald reversed his office’s stance on the constitutionality of Senate Bill 193 — the 2018 school vouchers bill — without any explanation, abruptly sending word directly to the House speaker that it was deemed constitutional, just prior to a key House vote on the bill. That was after months of his office warning lawmakers such a scheme would be found unconstitutional unless religion-based schools were removed from the possible recipients. We’re still awaiting word on how his office came to that about-face.
The three Democrats on the five-member council — Andru Volinsky, Debra Pignatelli and Mike Cryans — cited some of these same concerns regarding MacDonald, but each has made clear the primary reason for opposing MacDonald was politics. Each expressed concern MacDonald and the other court conservatives would not vote to defend the reproductive rights of Granite State women, should the federal Supreme Court overturn Roe v. Wade. They also worry about the rights of college students to vote in the state. Both are important issues, but are ideological issues, not measures of whether a judicial nominee is qualified to sit on the court.
Pignatelli said flat-out: “I am seeking … a court balanced on the political-philosophical spectrum from liberal to conservative.” That would be nice to have, but ought not to be the basis for voting on a specific nominee. (Volinsky’s reasoning is outlined here. Pignatelli’s can be found here.)
Former Justice Chuck Douglas, a Republican who now sits on the governor’s Judicial Nomination Committee, made the point on this page recently that nominees ought not to be subject to an ideological litmus test. While we don’t recall his taking that view publicly when Pignatelli’s predecessor David Wheeler announced he would not approve any nominee who was not “pro-life” or who was, in his mind, weak on 2nd Amendment issues, we tend to agree.
It’s hard to dismiss the political implications of any public decision in a culture that has become so divided and in which “compromise” has become a dirty word. We understand the fears of the Democratic councilors and others that conservative ideology might prevail should the court eventually be called upon to rule on reproductive rights or other issues reflective of ideological battles nationally. But the state constitution does not set out ideology among the criteria for selecting judges, and for good reason. What one political party favors now, it may oppose in a decade or two. And the makeup of both the courts and those elected officials determining who sits on the bench will also swing. The best that can be hoped is that all the justices appointed will be qualified to serve, will look to the law as their guide and will ignore political pressures.
It seems these days we’re reminded almost constantly of the saying “elections have consequences.” In this case, that works both ways. Those who returned Sununu to the governor’s office have no footing to complain now that he’s stacking the state’s top court with like-minded justices. It’s the right of a governor to put forth such nominees. At the same time, while we may disagree with the council Democrats’ reasoning behind rejecting MacDonald, they were elected to their seats and carry the right to vote down a nominee as they see fit.
For Sununu, it might be seen as comeuppance for his Executive Council vote in 2015 to deny Maggie Hassan nominee Dorothy Graham a seat on the Superior Court. His argument then — that nominees for that court should all be former prosecutors — was particularly weak. But then, as now, the governor was hindered by the opposing party holding a council majority.
While it might be comforting to some that MacDonald won’t preside over the state’s highest court, it ought to worry everyone that the decision was made based on political and ideological concerns, more so than on his qualifications.