Countway says she brings an open mind to NH high court

Melissa Countway, currently a New Hampshire circuit court judge, during her nomination hearing Wednesday to the state’s highest court.

Melissa Countway, currently a New Hampshire circuit court judge, during her nomination hearing Wednesday to the state’s highest court. Todd Bookman / NHPR


New Hampshire Public Radio

Published: 11-30-2023 1:51 PM

Melissa Countway, Gov. Chris Sununu’s nominee to New Hampshire’s Supreme Court, told the Executive Council that if appointed, she would bring a fair and impartial voice to the bench.

Countway, 52, was tapped to fill the seat being vacated by Justice Gary Hicks, who will turn 70 on Thursday, the mandatory retirement age for judges in the state.

Countway is an Alton native who has spent the past six years as a circuit court judge in the state, handling family law matters and lower level criminal trials. Prior to that, she served as Belknap County Attorney, running unopposed as a Republican in three elections.

During Wednesday’s opening remarks before the Executive Council, which approves judicial nominations in the state, Countway pointed to her experience in both roles, as well as her time as a classroom teacher before enrolling in law school, as giving her the broad skill set required to sit on the high court.

“I’m not a judicial activist,” Countway told the council. “I believe issues before the court should be decided narrowly. What is most important, however, is that I am open-minded. I’m committed to procedural justice.”

Countway faced blunt questions on the topic of abortion from Councilor Cinde Warmington, the lone Democrat on the council who is also running for governor. Countway deferred when asked directly about her position on abortion rights, saying that the judicial code of conduct doesn’t permit her to state her positions.

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“Of course, I cannot give any indication of how I would rule on a controversy that could come before the court,” said Countway.

She did tell Warmington that she has never participated in any rallies in support of or opposed to abortion rights.

With the U.S. Supreme Court’s ruling last year in the Dobbs case, which overturned the precedent set in Roe v. Wade, abortion rights advocates have highlighted the need for state-level judges to uphold protections for reproductive rights.

Chief Justice Gordon MacDonald testified in support of Countway’s nomination, saying she would “bring with her an accomplished, remarkably diverse and highly relevant background.” He noted that Countway, if confirmed, would be just the fourth woman ever to serve on the state’s highest court. Currently, Justice Anna Barbara Hantz Marconi is the only woman on the five-member bench.

Countway would also mark the first-ever circuit court judge selected to serve on the state Supreme Court, according to MacDonald, something he said would be an important addition to the lived experiences of justices.

Colleagues and friends of Countway spoke on her behalf during the hearing, testifying to her character, determination and interests outside of the legal profession, including hiking.

If confirmed, Countway would be Sununu’s fourth appointment to the five-member court. That imprint on the court could be extended if voters approve a constitutional amendment that will be on the ballot next November that would raise the judicial retirement age to 75.

Along with any possible abortion-related cases, the state Supreme Court is likely to take up a high-profile education funding case in the coming years, an issue justices have wrestled with in the past.

Countway’s confirmation vote could happen at the council’s next scheduled meeting in late December.

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