Assessing the MacDonald nomination fallout

While there were legitimate concerns about the nominee, opponents’ criticism was suspect

Now that a month or so has passed since the Executive Council rejected Governor Sununu’s nomination of Attorney General Gordon MacDonald to be chief justice of the New Hampshire Supreme Court, I shall venture a few observations about the process.

In fairness, readers should know that I was a signatory to a letter from 100 or so New Hampshire attorneys, including past and present Supreme Court Justices, who supported MacDonald’s nomination.

It was clear from the outset, and no one questioned, the integrity, education, ability or quality of the nomination, from a personal point of view. Gordon MacDonald enjoys a stellar reputation as an attorney, and has done a fine job as attorney general. A New Hampshire native, Dartmouth College and Cornell University Law School graduate, MacDonald has represented major clients in sensitive and important cases, with distinction. He was confirmed unanimously as attorney general and has not had criticism in that role.

So why oppose his nomination? The three Democratic members of the Executive Council gave various reasons, and the buzz on the internet in opposition to MacDonald repeated the themes. He worked for Gordon Humphrey, two-term U.S. senator, accused of being an “extremist.” Humphrey, elected twice to the Senate, was a conservative senator, but a young attorney working for him should not be assumed to agree with all his views for all time. Indeed, Thomas Burack, former Department of Environmental Services commissioner, often accused of being too liberal, started out working for Humphrey as well.

He represented the Roman Catholic Church and other clients people may disagree with. (Me too!) Attorneys represent clients to the best of their abilities, and criticizing them for those whom they have represented is foolishness.

He was a delegate for Marco Rubio in the last GOP primary. This is an interesting criticism, leveled by a councilor, Andy Volinsky, who was a delegate for Bernie Sanders, who could be accused of being more extreme than Rubio. Of course, confirmation for life on the court is different from being elected to the council, but the irony still exists.

It is presumed he was nominated to take positions in line with those of the GOP, especially on abortion rights. Assuming anyone knows how a nominee will vote on any issue or case that may come before the court, and voting on that assumption, is suspect. MacDonald said, as others have before him, that his job as a judge is different from other jobs he has had in the past, and he would have to respect precedent, which means he, as a conservative, would apply precedent, and not personal opinion. Indeed, the constant hammering of the nominee on the Roe v. Wade case, one which probably never would come to the New Hampshire court, appeared to be an excuse to rev up those who are passionate on that issue.

I suspect what opponents really have in mind are the Claremont school-funding cases, and the possible overturning of them. It was ironic that just as MacDonald was being defeated, the court, with two Sununu appointees, unanimously upheld the defeat of Northern Pass, which was supported by the governor.

So were there legitimate concerns about this nomination? Certainly, nominating someone who had never been a judge directly to chief justice would be a first and worthy of consideration. Already, three of the sitting justices, Bassett, Hantz-Marconi and Donovan, went to the Supreme Court without lower-court experience. The governor might have appointed one of the sitting justices as chief, with MacDonald as an associate justice.

Tradition affords that to the senior justice, and Justice Gary Hicks is well positioned to take the job.

Also, while Governor Sununu should be saluted for the quality of the appointment, in the words of the late Ray Burton, he should have “counted to three” before making the appointment, so he was sure such an important one would be confirmed, and would not embarrass the nominee.

When defeated, Governor Sununu claimed this was a unique event. In his lifetime, maybe. For those of us with longer memories, we could cite Louis Wyman, Steve Thayer and a number of other nominees to the high court who got tied up in politics.

Interestingly, when it was all over, the only one with his reputation intact in all this, was Gordon MacDonald!

Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass & Green, heads its government relations and estate planning groups. He can be reached at bcook@sheehan.com.

Categories: Cook on Concord

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