My Turn: Restoring fairness to judicial selection in New Hampshire

For the Monitor
Published: 8/22/2020 6:20:12 AM

For the better part of a year, I have been alone on the Democratic side in the various Executive Council primaries in advocating for fair, evidence-based judicial confirmations free from excessive partisanship. Criticism has been Herculean, but ultimately ineffective, in blunting our movement for new leadership on the Executive Council, if our grassroots support and campaign contribution volume is any measure. Voters are responding to a truly independent-minded kind of politics of courage that puts bedrock principles of decency and fairness over fast and loose political gamesmanship.

There is a hunger, now more than ever, in a once-in-a-century global pandemic, for government that works together in a time of crisis for our health and the economy.

Private political beliefs historically did not enter into judicial selection in New Hampshire. Democratic councils approved Republicans and vice-versa, without incident, for decades – so long as the nominees pledged to uphold the law. Respected former chief justice John Broderick, a leading Democrat twice confirmed by a Republican governor and council, is a prime example. The caveat for me is if a nominee has exhibited clear and convincing bias through hard evidence that impartiality is absent (such as articles or documented incendiary statements on substantial legal controversies).

Whispered innuendo about a nominee’s religious faith, past clients, or distant-past political employment when in their 20s, without more, should not be automatically disqualifying – especially if a nominee is unanimously recommended by the bipartisan Judicial Selection Commission, deemed fit to serve by our Bar Association, and receives near-universal praise, respect, and most importantly, trust, from leading Democratic and Republican judges and lawyers who have worked with the nominee in the trenches for decades.

Attorney General Gordon MacDonald is the Tom Brady of my profession – author of the bible for civil litigation in our state and a pioneering attorney general who has created professionalized departments for civil rights, appeals, and election law – progressive reforms no Democrat or Republican previously enacted. MacDonald has appointed not one but two LGBTQ individuals to lead the fledgling Civil Rights Bureau. He was supported by both President Barack Obama’s United States Attorneys, 18 former bar association presidents including a two-time Democratic nominee for governor, the legal counsel to beloved former governor John Lynch, and a former chair of the judicial selection commission, two lawyers who have served Planned Parenthood, the last three chief justices, all but one of our federal judges, and hundreds of bread-and-butter attorneys from both parties. He was rated as qualified by the N.H. Bar Association. And personally – but not unimportant – Gordon has been a mentor and friend to myself and scores of Granite State attorneys for decades despite being politically opposite – the way our independent-minded state can and should work – for justice and the greater good.

Perhaps most poignantly, MacDonald befriended, grieved with, and supported a victim of sex abuse at the hands of MacDonald’s then-client, the Diocese of Manchester. It is unheard of to see such compassion amongst those adverse in such unthinkably harrowing litigation, and there was not a dry eye in the room when this survivor testified to the council about this remarkably unlikely but powerful bond. There are a hundred other stories of this kind of sensitivity and compassion which do not fit the establishment narrative.

Not one smoking-gun document was produced at MacDonald’s 4½ hour hearing that called into doubt MacDonald’s pledge at the same hearing, three times, that Roe v. Wade is the law of the land – and has been for nearly 50 years. Political expedience and vaulting ambition by one councilor-turned-gubernatorial-candidate derailed the nomination. Not one attorney who litigates on a daily basis spoke out against the nomination at the hearing. I do not want to see such injustice occur again in the state where I was born and grew up, and I am willing to stand up to the powerful to advocate for principle. I am a reluctant candidate, but my belief in decency and fairness drives me in this race to get up early each day and take the sharp and unrelenting slings and arrows and to keep on fighting for a positive and egalitarian message.

A cornerstone of my campaign is treating nominees with respect and civility and examining the concrete, documentary evidence to determine fitness to serve impartially, whether a Republican, Democrat, or independent. At the end of the day, we want to hire the best and the brightest. Politicizing the process of picking the smartest judges we can deprives us of good folks willing to serve.

Should MacDonald or anyone else be nominated to a judgeship next year, they can be assured of being given a fair shake should I prevail.

(Jay Surdukowski is a Concord attorney and Democratic candidate for Executive Council District 2.)


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