NH AG Gordon MacDonald renominated to be chief justice of state Supreme Court

  • Attorney General Gordon MacDonald has an opportunity to elevate the debate over the school voucher bill. AP file photo

Concord Monitor
Published: 1/21/2021 10:05:09 PM
Modified: 1/21/2021 10:05:06 PM

CONCORD — Attorney General Gordon MacDonald said he would respect U.S. Supreme Court precedent if appointed to the New Hampshire Supreme Court — including over reproductive rights — responding to questions at an extended hearing Thursday to assess his renomination by Gov. Chris Sununu.

However, he would not detail how he might rule in the state’s highest court should Roe v. Wade be overturned federally, citing a long-standing tradition of not commenting on future decisions as a judicial nominee. He declined to divulge his own opinion.

“My view about abortion and any other issue that comes before the court is not relevant to the ability for me to exercise the role of a judge,” MacDonald told the New Hampshire Executive Council.

The answer came out of a lengthy and at times heated exchange with Councilor Cinde Warmington, the lone Democrat on the council. For most of the day Thursday, MacDonald fielded queries from Warmington and other members of the five-member elected body charged with approving judicial appointments in the state.

Over several hours, MacDonald said he would handle cases based on the facts and the statute, not his particular opinions. He demurred on answers about future judicial positions, citing the “Ginsburg rule,” named after Ruth Bader Ginsburg’s refusal to reveal that information during her Supreme Court confirmation hearings. He also pledged to recuse himself from any cases that the Department of Justice had been involved in while he served as Attorney General.

Sununu had nominated MacDonald earlier this month to the role of Chief Justice of the state Supreme Court — the second time in two years. That position has been left vacant since mid-2019, after the Democratic-controlled Executive Council rejected MacDonald in a 3-2 vote and after Sununu vowed he would not bring another nominee until they apologized.

This time, the political realities have changed. After a statewide rout in the November general election, Democrats lost two council seats to Republicans for this term, changing their 3-2 majority to a 4-1 Republican control. Now, MacDonald’s confirmation is seen as likely.

In opening testimony, MacDonald laid out a career he said prepared him well for the role, with extensive time spent in private practice and four years at the helm of the New Hampshire Department of Justice. He called the chief justice position “a position of great responsibility in service of our founding principles and the New Hampshire Constitution.”

MacDonald, who first moved to New Hampshire at 10 after his father took a job teaching at Dartmouth, eventually graduated from Dartmouth and went to attend Cornell Law School. He worked for years in health care litigation in the state for Nixon Peabody LLP, and also clerked with Judge Norman H. Stahl of the U.S. First Circuit Court of Appeals in Boston.

He spent some of his career in politics, working as a policy aide for New Hampshire Sen. Gordon Humphrey for seven years, and as a state campaign manager for the presidential bid of Republican Dan Quayle in 2000.

At the head of the Department of Justice, MacDonald oversaw the creation of an elections integrity unit for examining claims of voting irregularities as well as a civil rights unit. He led the state into litigation against opioid manufacturer Purdue Pharma, as well as 3M, which the state has accused of negligently contaminating drinking water with PFAS. He also has defended state laws that have been challenged in court, including one that tightens voting eligibility in the state, which Democrats have labeled voter suppression.

His lengthy career has earned MacDonald broad support in the state’s legal community for his bid to the high court, including from prior Chief Justice Robert Lynn, now a Windham Republican state representative, and former Chief Justice John Broderick a Democrat. Both men testified in favor of MacDonald’s confirmation Thursday.

But Democrats and reproductive rights advocates have objected to his time spent serving the Republican Party, and have argued that the pro-life views of some of the politicians he used to work for call into question his commitment to the right to abortion.

On Thursday, Warmington, a Concord attorney, leaned into that criticism, listing MacDonald’s prior work representing the New Hampshire Republican state committee; his former position on the board of the Josiah Bartlett Center for Public Policy, a right-leaning think tank; and his work for Humphrey and Quayle, both of whom had espoused anti-abortion views.

Warmington asked about legislation that had been filed by Humphrey while MacDonald worked for him that attempted to define life as starting at conception, and bar abortions. MacDonald said he did not remember assisting that legislation, and that his job had been to assist the senator with his legislative priorities.

“You would agree you are politically a conservative?” Warmington said.

“People can make their own judgments,” MacDonald responded. “But it’s not relevant, with respect, councilor, to my ability to be a judge.”

Over more than an hour of questioning by Warmington, MacDonald acknowledged Supreme Court precedents on gay marriage and “separate but equal” segregation, though he declined to comment on whether he personally thought they were fairly decided, calling it inappropriate for the hearing.

When it came to his own decisions, MacDonald said he would refer to the doctrine of “stare decisis,” which demands that judges take precedent from earlier court rulings.

New Hampshire’s Supreme Court has rarely heard a case on reproductive rights in the state. But Warmington raised the possibility of the U.S. Supreme Court, which currently tilts conservative, of overturning Roe v. Wade or chipping away at it. She asked what MacDonald’s future position might be if there wasn’t a U.S. Supreme Court precedent.

“This is a complete hypothetical,” MacDonald said. “I’m not going to answer that.”

Warmington’s line of questioning brought a slight rebuke from District 3 Councilor Janet Stevens, a Rye Republican, who invoked the experience of Broderick’s confirmation to argue the questioning was irrelevant.

“Sitting here today is former Supreme Court Justice Broderick, who I had the pleasure of speaking with,” she said. “He was active in Democratic politics prior to being named. As an attorney without judicial experience, he went right to the Supreme Court. Two years later, Justice Broderick became the chief justice. During his judicial hearing, there was no reference to his political affiliation.”

But Republican councilors had some of their own concerns. Councilor Joseph Kenney, of District 1, asked about the Department of Justice’s decision to fine businesses in the state who were not adhering to guidelines on mask usage in restaurants during the COVID-19 state of emergency. Eight businesses have received fines so far.

“They just want to make a living, and they want to do the right thing, and they want to follow all the guidelines,” Kenney said. “But we have got to have a conversation. We can’t be putting fines on people who are trying to make a living.”

MacDonald defended the decisions, arguing that he had issued a clear memo to businesses on how to apply the mask mandate, and adding that out of 1,500 total mask-related complaints from residents about businesses, most issues had been resolved by his department without the need for fines.

“That is our objective,” he said. “Does that work in every instance? No.”

Responding to a different question from Kenney, MacDonald stood behind Sununu’s decision to declare a state of emergency, arguing the governor was well within his statutory authority.

At the hearing, MacDonald had the support of one prominent member of the public, Kelly Ayotte, the former Republican U.S. Senator and state attorney general.

“I couldn’t think of a more qualified person to serve in this important job for our state,” Ayotte said, calling him diligent, even-handed and a good listener. “But what compels me really to be here has nothing to do with his qualifications. It’s really about his character. And the things that you can’t learn in school.”

The Council is set to meet at 10 a.m. Friday to take up the confirmation vote.

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