Sununu set to nominate AG Gordon MacDonald as chief justice of N.H.’s high court

  • Attorney General Gordon MacDonald speaks in the Executive Council chambers in Concord on March 28. AP

Published: 6/4/2019 4:34:12 PM

Gov. Chris Sununu will nominate Attorney General Gordon MacDonald to be the next chief justice of the state’s highest court.

MacDonald has served as the state’s top prosecutor since the Executive Council unanimously confirmed him for the role in April 2017. In a statement Tuesday, Sununu said he will formally nominate MacDonald for the New Hampshire Supreme Court during Wednesday’s Executive Council meeting. A public hearing on the nomination will follow at a later date.

“Gordon has served this state with distinction as Attorney General for the last two years, and I am honored to nominate him to lead our state’s highest court,” Sununu said.

If confirmed, MacDonald will succeed Chief Justice Robert Lynn who will reach the mandatory retirement age of 70 this year. He will step down on Aug. 23 after having served the court since 2010.

“The New Hampshire judiciary plays a vital role in the lives of the people of our state,” MacDonald said in a statement. “The prospect of serving as the leader of this branch of government is truly humbling.”

As attorney general, MacDonald succeeded Joseph Foster who stepped down after leading the department of justice for four years. MacDonald’s nomination as attorney general drew widespread praise from Democrats, Republicans, a former governor and legal leaders alike during his confirmation hearing in March 2017.

Since taking office, MacDonald has worked with Sununu to establish the department of justice’s first ever Civil Rights Unit. He also stood with Sununu last week in announcing a multi-million-dollar lawsuit against some of the world’s largest chemical companies over contamination of New Hampshire’s water and other natural resources.

“During his time as attorney general, Gordon’s leadership skills, along with his independence, have been on full display. Gordon has never been afraid to follow the path or take the action that he believes is right, even when that course may not be the easiest and even when some, including myself, may disagree with him,” Sununu said.

But within Sununu’s administration, MacDonald has also declined to involve the state in several multi-state lawsuits against the Trump administration over funding for the state, drawing criticism from Democrats. The department of justice did not join a 21-state action to intervene and defend the Affordable Care Act from a lawsuit that would dismantle it. And it didn’t join another mass lawsuit, also conducted by 21 states, to sue the Trump administration for a “domestic gag order” rule that would withhold federal funding to Planned Parenthood and other reproductive health clinics that didn’t comply with stringent requirements.

Previously, MacDonald was a partner at Manchester-based Nixon Peabody LLP, where he was a member of the commercial litigation group and represented some clients who opposed the state. In 2014, he helped New Hampshire hospitals negotiate a settlement agreement with the state over Medicaid reimbursements.

He also represented Purdue Pharma, the manufacturer of the painkiller OxyContin, in a legal battle against the office he now leads. The attorney general’s office opened an investigation in 2015 into Purdue and other drugmakers suspected of deceptively marketing opioids. Over-prescribing of painkillers is seen as a key cause of New Hampshire’s present heroin and fentanyl crisis. MacDonald has recused himself from the attorney general’s litigation.

If confirmed, MacDonald would likely need to recuse himself from cases that he had defended state departments as attorney general – including a lawsuit against Senate Bill 3, a bill to tighten voting requirements at the polls. A spokesperson for the department of justice could not immediately confirm the number of cases in state courts in which MacDonald’s department has defended the state.

MacDonald, a graduate of Dartmouth College and Cornell Law School, has been active in volunteer legal aid programs and previously represented domestic violence victims as a pro bono attorney. For three years, he chaired the Campaign for Legal Services’s fundraising efforts. Beyond the law, MacDonald has been a presence in New Hampshire Republican politics for decades. He was chief of staff for former U.S. Sen. Gordon Humphrey, and in summer 2016 he went to the Republican National Convention in Cleveland as a delegate for Marco Rubio.

Sununu said Tuesday he selected MacDonald from a list of finalists recommended by the governor’s bipartisan Judicial Selection Commission.

The high court has seen significant changes in recent years. Justice Lynn was chosen to lead the court after former chief justice Linda Dalianis stepped down in April 2018 because she also reached the mandatory retirement age. Her departure last year followed the retirement of justice Carol Ann Conboy.

To fill those open seats, Sununu has nominated current justices Anna Barbara “Bobbie” Hantz Marconi and Patrick E. Donovan.

If MacDonald is confirmed, Sununu will have appointed three of the five justices on the high court.

(Staff writer Ethan DeWitt contributed to this report.)

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