The Executive Council’s vote Wednesday not to confirm Attorney General Gordon MacDonald as chief justice of the New Hampshire Supreme Court not only unleashed a political firestorm but sent shock waves through the judicial community.
The 3-2 vote along party lines caused senior attorneys and former Supreme Court justices to question how a long-trusted and respected process could be turned on its head by party politics.
“These appointments have never been viewed through a political prism and once we start doing that — assume that because once you were an active Democrat or once you were an active Republican and so you will automatically rule a certain way — we are going down an avenue we ought to not head down,” said retired Supreme Court Justice John Broderick. “I think Gordon MacDonald was a victim of that.”
“What I don’t understand is that he is able to serve as the people’s lawyer but partisan politics prevents him from being on the bench. That’s very concerning,” said Broderick, a Democrat who served on the court from 1995 to 2010 after being nominated by Republican Gov. Steve Merrill.
MacDonald was unanimously confirmed by the Executive Council as attorney general in April 2017. Had he been confirmed as chief justice, he would have been Gov. Chris Sununu’s third appointee to the state’s highest court in three years.
Democratic councilors Andru Volinsky, who is expected to run for governor next election cycle, Michael Cryans and Debora Pignatelli opposed MacDonald’s nomination, while Republicans Ted Gatsas and Russell Prescott voted in favor.
“This is politics, pure and simple, by three Democrats, of which I am one,” said attorney W. Scott O’Connell, chairman of Nixon Peabody’s litigation department. “It was a very shortsighted decision and the wrong decision made for bad reasons.
“At the end of the day, the problem is we have a three-person Democratic majority in the Executive Council and they were in a position to rebuke the governor’s nominee without fair consideration of the characteristics that Gordon MacDonald brought to the job,” O’Connell continued.
On the eve of the controversial vote, 18 former presidents of the New Hampshire Bar Association and more than 100 members of the bar submitted bipartisan letters of support to the council urging confirmation. They echoed the support by Chief Justice Robert Lynn, and his two predecessors, as well as dozens of others who spoke at his public hearing last month, including Retired Justice Carol Ann Conboy, who said that MacDonald acts with a sense of urgency that would benefit the court.
But MacDonald’s supporters say intellect, character and judgment were secondary considerations in a nomination process tainted by debates over partisan issues, including abortion, gun rights and school funding.
“Just because you’re a member of a political party doesn’t mean you can predict a person’s views on all issues,” said retired Supreme Court Justice Chuck Douglas. “You can’t paint with a broad brush and say, ‘If you’re X then you must believe in Y.’ This painting with a broad brush is dangerous, and it’s unprecedented in this context.
“The governor is going to take some time and take a step back and see where we go from here, and he should because this is absurd,” Douglas said.
After the vote Wednesday, Sununu announced he was pausing all judicial nominations “for the time being.” He called the vote “shameful.”
Prior to his appointment to the Supreme Court, Broderick served as legal counsel to the state’s Democratic Party and was co-chairman of Bill Clinton’s presidential campaign, as well as Joe Biden’s first presidential campaign.
“But during my hearing, not one member of the council asked me a single question about my Democratic politics or Democratic activism,” he said. “I was confirmed, 5-0.”
Broderick said a person’s political affiliation should not automatically disqualify them. Further, he said, the perception that someone would assume the role to get “political justice” is a dangerous and misplaced one.
“It’s never been the court’s history, it’s not its tradition and it’s not where it is today,” he said.
The Associated Press contributed to this report.