The fire and fury have faded. Months since the Democratic majority on the Executive Council rejected his nomination, the fight to place Gordon MacDonald on the state Supreme Court is all but over.
But some in the Statehouse have not forgotten it.
And now, as Gov. Chris Sununu digs in, the vacancy on the state’s five-member Supreme Court could be here to stay.
Speaking to reporters Wednesday, Sununu made clear that his frustrations with the Executive Council have not yet abated. The upshot: No nomination will be coming from the governor’s office any time soon.
“I don’t have a timetable,” he said, adding that he had not asked his Judicial Selection Commission to weigh in. He added: “I’m not going to bring folks forward if politics is a key variable in the decision-making of the Executive Council.”
The remarks come in the shadow of a nominating and voting process as acrid as any in recent memory. MacDonald, put forward by Sununu, faced a fierce wall of objection from opponents on the left from the get-go, after abortion rights activists criticized his history working with Sen. Gordon Humphrey, an abortion opponent, among other things.
The 3-2 party-line vote to oppose him was predictable — and had even been privately intimated to the governor before the vote, councilors say. But the outcome was one of the clearest schisms in New Hampshire’s divided government, where both sides have given little ground.
“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 statement after the July 10 vote. “And today, the Executive Council has thrown that right out the window.”
For Sununu, major changes are needed from the councilors before another candidate is brought forward, starting with an apology. For others, it’s the governor who needs to adapt.
“I don’t think that there needs to be a change,” said Councilor Debra Pignatelli, a Nashua Democrat, speaking of the Council. “I think that the governor needs to realize that when he nominates someone, the Council does its due diligence.”
Now, lawyers and court employees are resigned to a new reality: New Hampshire’s Supreme Court will be one justice short, potentially through the next election. And it will be missing a Chief Justice as well.
Chief Justice Robert Lynn, whom MacDonald was tapped to replace, stepped down from his post on Aug. 23 — days ahead of his 70th birthday and mandated retirement.
Some say the situation will impede proper justice moving ahead. Others have shrugged it off.
It’s an unfortunate but necessary situation, Sununu and Republicans say. The problem isn’t that Democrats rejected MacDonald. It’s that they used his political beliefs to do it, they argue.
“I think it would (be) great to be able to move forward, but the council has made it very clear that they’re going to keep politics as a key variable in there, and I think everybody would agree that your political affiliation should not come into play at all when it comes to dictating someone to sit on the Supreme Court,” Sununu said.
The issue, says Republican councilor Russell Prescott: The Council should only take into account the provisions in the state constitution, which holds that “it is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit.”
Anything other than the nominee’s fitness for office, Prescott said, should not be considered.
So the Council should take up MacDonald again, Prescott added, but this time, with councilors basing their decisions on non-political factors.
“They need to live up to their solemn oath to uphold the constitution,” Prescott said. “They have not done that, therefore they’ve got to correct their ways to live up to the people of New Hampshire.”
Pignatelli countered that she and her Democratic colleagues bare no responsibility. Rather, she said, change should start with the governor, who she said did not do enough to consult with the three Democratic councilors ahead of floating the nominee.
Since the MacDonald vote, the Nashua councilor has met with Sununu “several times” to “(give) him the name of someone that I feel that after a public hearing could get a five-to-nothing vote out of this council,” she said, declining to divulge the name.
“The reaction was different each time I mentioned it,” she said.
But on Wednesday, Sununu said Executive Council input was inappropriate.
“They can’t be part of the nominating process,” he said. “That would be a breach of checks and balances.”
Pignatelli, meanwhile, stood by the opposition to MacDonald, and the form it took. His nomination would disrupt a “balance of philosophical views,” she said.
“For me, it changed the balance of the Court,” she said. “And I was looking for a balance on the Court.”
For his part, Sununu has all but called for an apology.
“They haven’t even tried anything yet,” he said of the Democrats. “They haven’t come and said, ‘Look, we’re going to actually move forward. We’re not going to consider politics. We apologize to Gordon for putting him through that. It was a very inappropriate step that we took. And we’re willing to actually take a step back and reconsider.’ Whether it’s Gordon, or other judges, with some type of assurance that politics will not come to bear.”