2019 Stories of the Year: AG Gordon MacDonald denied as Supreme Court judge

Monitor staff
Published: 12/26/2019 4:39:47 PM

These days, the Executive Council can seem like a pressure cooker of frustrations.

On the right: Gov. Chris Sununu, who lost his voting majority in 2018, even as he continues to control the agenda.

On the left: Councilor Andru Volinsky, the senior-most member of the Democratic caucus and a recently-announced challenger to Sununu’s governorship.

The tableside rivalry, executed by grim smiles and petty spars, could be chalked up to pre-2020 posturing. With the state primary still set for a distant September, scores of council meetings remain before the critical election.

But much of this year’s angst can be rooted to a man not even running for political office: Attorney General Gordon MacDonald.

On July 10, Sununu’s nomination of MacDonald to the state Supreme Court was struck down by the council, in a 3-2 vote. Depending on who you ask, it was an action that either preserved the political balance or tore it asunder.

Sununu falls squarely in the second camp.

“This body has a tradition going back literally hundreds of years, working in a nonpartisan manner, executing their responsibility of confirming nominees based on their qualifications, body of work, and merit – without political bias,” Sununu said in a fiery statement moments after the vote.

“And today, the Executive Council has thrown that right out the window...”

It was a moment of high drama for the Council, holed up that morning in the Littleton Opera House. But the vote had been hinted at for weeks.

By some measures MacDonald, the state’s Attorney General since 2017, could have been a consensus pick. As a commercial litigator at Nixon Peabody prior to his Attorney General post, he had banked goodwill from fellow New Hampshire attorneys from all sides of the spectrum.

Dozens of those lawyers signed a letter in June recommending MacDonald for the chief justice position.

But then came the concerns. Critics of MacDonald cited his lack of experience as a judge, questioning his suitability for the court’s senior position. They pointed to his work as chief of staff and legislative director for Sen. Gordon J. Humphrey, a Republican, arguing it indicated political bias.

Most of all, opponents of MacDonald’s confirmation cited reproductive health concerns. Humphrey’s anti-abortion positions and MacDonald’s later work for the Catholic diocese were used to bolster fears that MacDonald could steer the state court to erode abortion protections. During a Council hearing, MacDonald refused to take a stance on how he would rule, citing longstanding precedent.

The campaign tactics worked. Days ahead of the vote, the Executive Council phone line was jammed with messages and calls on both sides of the debate.

By then, Democrats’ minds were solidified. As MacDonald and his family looked on, the three came together to block the confirmation.

The move set off instant ripples. Visibly furious, Sununu canceled a subsequent vote to confirm Martin Honigberg to the Merrimack County Superior Court, withdrawing that nomination until he had “confidence there’s appropriate perspective from the Council on their responsibilities to the process and to the state.”

But the damage has proven lasting, too. Nearly six months later, Sununu has declined to bring forward a different nominee. He said he won’t until he gets an apology from Democrats and an assurance that they won’t use politics as a yardstick to measure a nominee.

Other Republican councilors agree. By tying personal politics to the rationale behind a vote, Democrats crossed the line, they say.

“They need to live up to their solemn oath to uphold the constitution,” Republican Councilor Russell Prescott said of his Democratic colleagues. “They have not done that.”

Democrats argued the move was more about preventing an ideological slant on the state Supreme Court.

“For me, it changed the balance of the Court,” said Councilor Debra Pignatelli, speaking on MacDonald’s nomination. “And I was looking for a balance on the Court.”

The lack of a new nomination from the governor means the Supreme Court could be saddled with a four-justice court for some time to come. That could mean the need for a substitute Supreme Court justice on crucial pending lawsuits on voting rights and educational funding.

It’s a situation unlikely to be resolved soon. Mark it as the latest casualty of a split Concord government.




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