My Turn: Politics and justice – hard lessons

For the Monitor
Published: 7/2/2019 9:00:15 PM

Last week I waited to testify for almost three hours before the Governor’s Council on the nomination of our Attorney General Gordon MacDonald to become Chief Justice of the New Hampshire Supreme Court. I was happy to wait. Gordon is a Republican (I am a life-long Democrat) who had a distinguished legal career in private practice before he became the chief law enforcement officer of our state in 2017. He was nominated by Gov. Chris Sununu to that important post and was confirmed by a unanimous vote of the Governor’s Council. He deserved that. He has done an outstanding job in his time there.

Before he began practicing law, he held a much-coveted clerkship on the First Circuit Court of Appeals in Boston for Judge Norman Stahl of New Hampshire. Hundreds of the top law school graduates apply each year for the handful of clerkships available on that highly-regarded federal appellate court. Gordon was one of the very few who got one. Judge Stahl was my law partner years ago and he is an exceptional person and a highly-regarded judge. He was a mentor of mine at Devine, Millimet when I was a young lawyer and he is now a cherished friend. He testified last week for Gordon MacDonald, too. Judge Stahl is now in his 80s but he drove here from Boston and waited several hours to speak for the allotted three minutes. He would not have done that for anyone he didn’t respect highly. That alone spoke volumes about who Gordon MacDonald is.

Gordon MacDonald’s nomination to the Supreme Court had broad bipartisan support in the legal community from dozens and dozens of experienced lawyers I respect and the public support of the current Chief Justice and two former Chief Justices, one of them me. That in itself is highly unusual but a fitting tribute to the quality of the governor’s choice. I spent 15 years on our state’s highest court and 22 years advocating for others in New Hampshire’s trial courtrooms during my many years in private practice. When I left the court I became dean of our university’s law school. Suffice it to say I have had a four-decade tutorial on good lawyering and judging and the qualities and integrity that those jobs require if done well.

Gov. Steve Merrill nominated me to be an Associate Justice of our Supreme Court in 1995. The decision in the first Claremont School Funding case was two years old then. He never asked me about it and if he had I would have rightfully declined to answer. Frankly, I had no opinion about it because I had not been immersed in it and was not called upon to judge it. In 2004 after I had been involved in several follow-along Claremont cases, another Republican governor, Craig Benson, nominated me to become Chief Justice. He never asked me about those opinions. And I wouldn’t have discussed them if he had. I was confirmed to both posts.

In recent times, confirmations, especially in Washington, have become blood sport. Both political parties are guilty. This is especially true for nominations to the U.S. Supreme Court. It is increasingly about political posturing and expecting nominees to assure members of the opposite political party how they will vote on certain types of cases. Abortion is chief among them. Nominees can’t and shouldn’t answer those questions. Sometimes partisanship is so rampant one party refuses to even hold a hearing on a Supreme Court nominee as occurred in a Republican Senate with Judge Merrick Garland. But nominations to the courts of New Hampshire until recently have not followed suit. Sadly, for all of us that seems to be changing.

A few years ago, a highly respected public defender was denied a seat on our superior court by a Republican-majority Executive Council because she had represented people charged with heinous felony crimes and used her legal skills to put the state to its proof. That is what our constitution envisions. She was punished for doing her job. Her nomination was defeated. Last week Attorney General Gordon MacDonald was quizzed by a Democratic-majority Executive Council at length about his views on abortion and Roe v. Wade. Even when he said he considered it “settled law” that didn’t seem to satisfy some councilors. There is some fear the U.S. Supreme Court will overturn the Roe decision and assurances were sought from the nominee on how he might rule if it becomes a state issue. Of course, he couldn’t and shouldn’t offer any. He can’t. That’s the whole point.

I fear that the respect the courts have maintained in our state over generations is increasingly at risk because of the polarizing litmus test nature of the confirmation process. It never used to be that way here and decent people with skill, character, experience and public respect were allowed to serve and we were grateful for their commitment to undertake it, often at financial sacrifice. There will come a day when there will be another Democratic governor with a majority Republican Executive Council hoping to fill a seat on our Supreme Court. Maybe they will defeat a nomination because he or she would not respond when asked if they were pro-life. What goes around comes around. All of us would be well served by a truce. We all deserve it. So does Gordon Macdonald.

(John T. Broderick Jr. served on the New Hampshire Supreme Court from 1995-2010. He served as Chief Justice from 2004-2010.)

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