New Hampshire’s Executive Council, three Democrats and two Republicans, four men and one woman, will meet on Wednesday. They will debate a decision that could, more than most, affect the lives of the state’s citizens, especially the 50.5% of the population who are female.
The council has been asked to confirm the nomination of Gordon MacDonald, a conservative Republican and the state’s attorney general, for the position of chief justice of the New Hampshire Supreme Court. If confirmed, MacDonald, 57, would be the first chief justice in memory to come to the court with no prior judicial experience. It’s possible that could be a plus, but his lack of that signature experience should be a serious consideration.
So, too, should MacDonald’s record, but not as a litigator. He is esteemed by his colleagues for his legal acumen, reasonableness, high ethical standards and his commitment to justice for all, particularly those without the means to afford an attorney. It’s his record as a longtime aide and chief of staff to Sen. Gordon Humphrey in the 1980s, including during Humphrey’s tenacious campaign to outlaw abortion on a federal level, and as a lawyer representing the Diocese of New Hampshire, a staunch opponent of abortion and a woman’s right to choose.
As lawyers Susan Arnold and Monica Ciolfi pointed out in these pages last week, a campaign to overturn the 46-year-old Roe v. Wade decision that affirmed a woman’s right to obtain an abortion is under siege. The high court is expected to revisit the ruling. If it does, one outcome could be to return the right to access an abortion to the states. If so, the matter would likely wind up in New Hampshire’s Supreme Court.
We have no idea whether MacDonald shares the views of his clients or his former boss on access to abortion. Nor, like most nominees to judicial positions, can he be expected to share his views on the matter with the council for fear of prejudicing his ability to participate in abortion-related cases. Nor should judicial nomination decisions turn on a single issue.
What the council should probe is MacDonald’s view of stare decisis, the principle that courts should, with exceptions, “stand by things decided” and follow precedent.
At the federal level, Chief Justice John Roberts has called Roe “settled law.” Does MacDonald agree?
Law is settled until it isn’t. Scores of cases have overturned precedent, most famously Plessy vs. Ferguson, which said that racially segregated schools were constitutional as long as they were equal, and more recently, the 40-year-old precedent that held that public sector unions were allowed to collect dues from non-members represented by the unions in negotiations.
Roe v. Wade has been settled law in New Hampshire and, despite continuous opposition by a minority, has the support of the public. Polls have shown that between two-thirds and three-quarters of residents polled believe that abortion should be legal in most circumstances. Only 10 percent, according to the UNH Survey Center, say abortion should never be legal.
Councilors should do all they can, before they vote, to determine whether MacDonald believes Roe is settled law and what it would take, should he join the court, for him to break with precedent.