When Executive Councilor Mike Cryans, D-Hanover, told the Valley News last week that he intends to vote against Gov. Chris Sununu’s nomination of Attorney General Gordon MacDonald to be chief justice of the New Hampshire Supreme Court, citing concerns about the depth of his commitment to reproductive and voting rights, Sununu fired off an angry rejoinder.
“Washington-style politics have entered New Hampshire in the worst way possible,” Sununu said. “Councilor Cryans owes an apology to every single one of his North Country constituents for this shameful and blatantly partisan vote. Rarely has New Hampshire seen a nominee so well regarded — with unprecedented and unanimously bipartisan support from lawyers, justices, and legal assistance and victim’s rights advocates — fall victim to pure partisan politics.”
The governor is either short on memory or long on hypocrisy. Return with us to November 2015, when Sununu, then an executive councilor running for governor, joined with his two Republican colleagues to reject then-Gov. Maggie Hassan’s nomination to the Superior Court bench of Dorothy Graham, a battle-tested and decorated veteran of 20 years as a public defender who enjoyed broad and deep support in the legal community, including from Manchester’s police chief.
Sununu’s reason? That judges should come from the ranks of prosecutors — although according to New Hampshire Public Radio, he acknowledged also being influenced by a piece published on a Washington-based website owned by a conservative political activist that criticized Hassan for nominating someone who had represented sex offenders on appeal. That reason was also cited by one of Sununu’s two council colleagues at the time. This spurious reasoning drew a written rebuke signed by 27 past presidents of the New Hampshire Bar Association pointing out that the American legal system is predicated on every criminal defendant receiving effective representation. And as we and others pointed out at the time, public defenders do not select their clients; they are assigned to them and they are ethically bound to provide zealous and devoted representation, no matter what crime is alleged.
Given the transparent flimsiness of the excuses for the three Republican “no” votes on Graham’s nomination, we inferred that a highly qualified nominee was sacrificed in a clumsy attempt to embarrass Hassan, who was then challenging Republican incumbent Kelly Ayotte for her seat in the U.S. Senate. So much for playing politics with judicial nominations.
As for MacDonald, there are several troubling aspects to his nomination. Not only does he have no judicial experience, he also has never tried a case in front of a jury. Thus he lacks a written record by which to evaluate his powers of analysis or exposition, and to assess whether he is alive to the consequences of his rulings. Given that this is Sununu’s third Supreme Court nominee in a row without relevant experience as a judge, it can be readily inferred that the lack of a record that can be scrutinized is intentional.
In the absence of a judicial record, one needs to turn to what record there is. And that record raises a question of whether MacDonald is sufficiently independent-minded to be chief justice. Two examples will suffice to highlight this potential problem.
One occurred in 2017, when the Attorney General’s Office reversed its long-standing position that pending legislation to create an expansive school choice program championed by Sununu was unconstitutional. This took the form of a two-sentence email from Associate Attorney General Anne Edwards to the House speaker’s office: “As discussed with Attorney General MacDonald this morning, we believe that SB 193, with its proposed amendment 2018-253, is constitutional. There are a few areas of the proposed amendment that could be enhanced and we are ready to provide technical assistance to the House.” Given that there had been several prior warnings from the Attorney General’s Office that public money flowing to religious schools was prohibited by New Hampshire’s constitution, the failure of MacDonald to provide a detailed legal rationale for the about-face was beyond curious, especially because a formal process exists to do so.
Also troubling is MacDonald’s revision of rules governing the so-called Laurie List of police officers who have credibility problems, such as lying under oath or falsifying evidence. Key changes included a stipulation that officers will not be placed on the list during misconduct investigations, but only when it has been determined that misconduct took place. And he left it up to officers themselves to notify prosecutors that they are under investigation, so they in turn can notify defendants, who are entitled to any information that is favorable to their defense.
MacDonald said these changes were mandated by state Supreme Court rulings to protect the due process rights of police officers, but it’s also the case that they were in accord with a campaign promise Sununu made to police unions to tighten the rules for inclusion on the list. The Department of Justice also claimed that the list was exempt from public disclosure, a contention rejected in April by a Superior Court judge who ruled in favor of news organizations seeking to make it public. So that issue may become moot. But MacDonald’s motivation in making these changes is still relevant.
Given that Democrats outnumber Republicans on the Executive Council 3-2, MacDonald will need the support of at least one Democrat to be confirmed. Cryans has stated his case, although it is not the same one we are making here. But there are certainly enough question marks that opposition to his nomination need not be partisan in nature.