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New Hampshire Supreme Court justice vacancy (August 2019)
| New Hampshire Supreme Court |
|---|
 |
| Lynn vacancy |
| Date: August 23, 2019 |
| Status: Seat filled |
| Nomination |
| Nominee: Gordon MacDonald |
| Date: June 5, 2019: Nominated July 10, 2019: Rejected January 7, 2021: Nominated |
New Hampshire Governor Chris Sununu (R) first appointed Gordon MacDonald to the New Hampshire Supreme Court on June 5, 2019. In July 2019, the executive council rejected nominee Gordon MacDonald by a 3-2 vote. On January 7, 2021, Gov. Sununu renominated MacDonald. He was confirmed in a 4-1 vote by the executive council on January 22, 2021.[1] MacDonald succeeded Chief Justice Robert J. Lynn, who retired on August 23, 2019, after having reached the mandatory retirement age of 70 years old. MacDonald was Gov. Sununu's third nominee to the five-member court.[2]
Under New Hampshire law, when a vacancy occurred on the court, the governor nominated a successor from a list submitted by the New Hampshire Judicial Selection Commission. The executive council then voted to approve the nomination and make the appointment.[3]
The appointee
- See also: Gordon MacDonald
On June 5, 2019, Gov. Sununu announced the nomination of Gordon MacDonald to succeed Lynn as chief justice of the New Hampshire Supreme Court. At the time, MacDonald was the attorney general of New Hampshire.[2]
On July 10, 2019, the New Hampshire Executive Council voted 3-2 along party lines to reject MacDonald's nomination.[4] The governor called the vote a partisan political move, saying, "Never, until today, has politics ever come into play in the questioning and confirmation of nominees."[5] Executive Council member Debora Pignatelli (D), who voted against MacDonald, said she thought the governor was "trying to pack the court with very conservative justices." She also expressed concern about MacDonald's previous political activity.[6] Click here for more information.
In September 2020, Gov. Sununu announced he would not announce a new nominee until after the election on November 3, 2020.[7]
On January 7, 2021, Gov. Sununu renominated Gordon MacDonald to serve as the chief justice of the New Hampshire Supreme Court.[8][9]
MacDonald, a Republican, became the attorney general in 2017. Gov. Sununu appointed MacDonald as attorney general on March 22, 2017, and the New Hampshire Executive Council unanimously confirmed MacDonald on April 5, 2017. Before becoming attorney general, he was a partner at Nixon Peabody LLP in Manchester, New Hampshire. He served as chief of staff to former U.S. Senator Gordon Humphrey (R) during the 1980s.[2]
MacDonald earned a J.D. from Cornell Law School. After law school, he was a law clerk to Judge Norman Stahl of the United States Court of Appeals for the 1st Circuit.[2]
The selection process
- See also: Judicial selection in New Hampshire
At the time of the vacancy, the five justices of the New Hampshire Supreme Court were appointed to serve until they reach the age of 70 using a form of merit selection. Three groups were involved in the appointment process: the New Hampshire Judicial Selection Commission, who compiled a list of candidates; the governor, who nominated a judge from that list; and the New Hampshire Executive Council, who had the final say in each appointment.[3]
New Hampshire Judicial Selection Commission
The New Hampshire Judicial Selection Commission assisted the governor with judicial selection in the state.
Nine to 11 members served on the commission. The commissioners were appointed by the governor and served three-year terms. Members were able to serve additional terms if invited to do so by the governor. Each executive council district was represented on the commission.[10]
New Hampshire Executive Council
- See also: New Hampshire Executive Council
At the time of the vacancy, the New Hampshire Executive Council was a five-member executive board in the New Hampshire state government. Members were selected every two years in partisan elections. As outlined in the New Hampshire Constitution, the council had the final word on all judicial appointments. Members also advised the governor in other policy areas, including the state budget and the state's 10-year Highway Plan.[11][12]
As of 2020, the following members served on the Executive Council:
| New Hampshire Executive Council | ||
|---|---|---|
| Member | Partisan affiliation | District |
| Michael Cryans |  Democrat |
District 1 |
| Andru Volinsky | Democrat |
District 2 |
| Russell Prescott |  Republican |
District 3 |
| Ted Gatsas | Republican |
District 4 |
| Debora Pignatelli | Democrat |
District 5 |
Conflict between the governor and the Executive Council
On July 10, 2019, the New Hampshire Executive Council voted 3-2 along party lines to reject Gordon MacDonald's nomination.[4] The vote began a conflict between Republican Gov. Chris Sununu and the Democratic-majority council.
Responses from Republicans
- Gov. Sununu on July 10, 2019: "Never, until today, has politics ever come into play in the questioning and confirmation of nominees."[5]
- Gov. Sununu on October 23, 2019: "I’m not going to bring folks forward if politics is a key variable in the decision-making of the Executive Council. ... I think it would 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."[13]
- Councilor Russell Prescott said the council should reconsider MacDonald's nomination. "They need to live up to their solemn oath to uphold the constitution. They have not done that, therefore they’ve got to correct their ways to live up to the people of New Hampshire."[13]
Responses from Democrats
- Councilor Michael Cryans expressed concern over MacDonald's views on abortion and voting. "In fairness to Gordon, he’s a hard-working attorney general. He’s bright, but on the issues, we just have a disagreement. And … I’d like to have the governor, if this one doesn’t succeed, look at people with trial judge experience."[14]
- Councilor Debora Pignatelli said she thought the governor was "trying to pack the court with very conservative justices." She also expressed concern about MacDonald's previous political activity.[6]
- Councilor Pignatelli also said on July 10, 2019: "We all want the highly qualified person with unquestioned ethics, that is the bare minimum. But I’m seeking more — a court balanced on the political-philosophical spectrum. And wouldn’t it be nice to have gender balance as well?"[15]
Media coverage
This section includes excerpts from articles about the appointment process. Coverage focused on the nomination of Gordon MacDonald and conflict between the governor and the state Executive Council.
- Todd Bookman, New Hampshire Public Radio (January 8, 2020): "Last July, Democrats on the Executive Council blocked Gov. Chris Sununu’s nominee for Chief Justice of the five-member court: current Attorney General Gordon MacDonald.
- Both sides accused the other of letting partisanship seep into the judicial nominating process. Democrats on the council said MacDonald's lack of judicial experience and previous work in GOP politics made him a bad fit to lead the state's highest court. Sununu, in turn, accused Democrats of holding MacDonald to an unfair standard. MacDonald's nomination had been endorsed by leading members of the state's legal community, including several former chief justices of the state Supreme Court.
- At the conclusion of Wednesday’s otherwise conflict-free Executive Council meeting, Councilor Andru Volinsky, a Democrat, asked Sununu if he had a timetable to bring forward a new nomination. Sununu said he had no plans to do so.
- 'As soon as this body decides that politics isn’t going to be played in the nomination process, then we can discuss coming forward,' said Sununu. 'But there has been no indication from this body that that won’t be considered.'"[16]
- Ethan DeWitt, Concord Monitor (October 26, 2019): "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. ...
- The remarks come in the shadow of a nominating and voting process as acrid as any in recent memory. Attorney General 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 criticisms. ...
- 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. ...
- 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. ...
- 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."[13]
- Holly Ramer, Valley News (July 10, 2019): "While MacDonald had broad support from the legal community — including from Lynn and his two predecessors — critics raised questions about his lack of experience as a judge and his involvement in conservative politics.
- At his public hearing last month, MacDonald insisted he would uphold the law impartially and protect the independence of the judiciary, but Councilor Andru Volinsky said that wasn’t enough. He said he wanted MacDonald to distance himself from the 'shockingly extreme views' of politicians he had supported."[15]
- Jay Surdukowski, Seacoast Online (June 28, 2019): "Chief Justice Earl Warren, too, was a former Republican operative and party chair and then an attorney general and governor of California. Also a talented man, he was made chief justice of the United States having never been a judge a day in his life. More locally, the same holds for former Chief Justice John Broderick and Chief Judge of the First Circuit Jeffrey Howard. Both went on the bench as attorneys with zero judicial experience and rose to lead their respective benches, such were their talents. Respected former and current justices Jim Duggan and Jim Bassett also rose to the state’s highest court without being trial judges.
- Warren, like MacDonald, mirrored and was informed by his times and is now remembered for the landmark civil rights cases of the 1950s and 1960s. Like Warren, will MacDonald be a man who moves in sync with where we are going on the long road bending towards justice? His tenure as attorney general gives some clues to the kind of leader of the Judicial Branch he would be -- a leader that doesn’t quite fit into a 'conservative' box -- but more of a good management, responsive to problems, practical liberal democratic tradition of fairness and justice -- no matter one’s rank or station, color, political views or sexual orientation. ...
- Those who are stung by Southern abortion bans and are leery of one who many years ago worked as a young man for an anti-abortion U.S. senator would do well to remember personal views are personal views but the law is the law. MacDonald would assuredly follow the maxim of stare decisis -- let the decision stand, as he made abundantly clear at his confirmation hearing. ...
- Finally, MacDonald is a lawyer’s lawyer; he literally wrote the book on litigation in our jurisdiction -- the three volume New Hampshire Practice treatise on court procedure. There is a reason MacDonald has so-far garnered the public support of more than 120 prominent attorneys and retired judges, including the current and two former chief justices, associate justices, four of our federal court judges, both President Barack Obama’s U.S. attorneys, attorneys general appointed by two Democratic governors, and scores of Democratic and Republican attorneys who practice daily law, not blind partisanship."[17]
Makeup of the court
- See also: New Hampshire Supreme Court
Following Lynn's retirement, the New Hampshire Supreme Court included the following members:
| ■ Gary Hicks | Appointed by Gov. John Lynch (D) in 2006 | |
| ■ James Bassett | Appointed by Gov. Lynch in 2012 | |
| ■ Anna Barbara Hantz Marconi | Appointed by Gov. Chris Sununu (R) in 2017 | |
| ■ Patrick Donovan | Appointed by Gov. Sununu in 2018 |
About Chief Justice Lynn
- See also: Robert J. Lynn
Lynn was nominated to be the chief justice of the New Hampshire Supreme Court by Gov. Chris Sununu (R) on February 6, 2018. The New Hampshire Executive Council confirmed Lynn's nomination and he was sworn in on April 9, 2018.[18][19]
Lynn was first appointed to the court as an associate justice. In November 2010, Gov. John Lynch nominated Lynn to succeed Linda Dalianis, who became chief justice of the court.[20][21]
Lynn was a judge on the New Hampshire Superior Court from 1992 to 2010.[20]
Lynn received his undergraduate degree from the University of New Haven in 1971 and his J.D. from the University of Connecticut School of Law in 1975.[20]
Other state supreme court appointments in 2019
- See also: State supreme court vacancies, 2019
The following table lists vacancies to state supreme courts that opened in 2019. Click the link under the Court column for a particular vacancy for more information on that vacancy.
Click here for vacancies that opened in 2020.
| 2019 judicial vacancies filled by appointment | |||||
|---|---|---|---|---|---|
| Court | Date of Vacancy | Justice | Reason | Date Vacancy Filled | Successor |
| Florida Supreme Court | January 7, 2019 | Fred Lewis | Retirement | January 9, 2019 | Barbara Lagoa |
| Florida Supreme Court | January 7, 2019 | Barbara Pariente | Retirement | January 14, 2019 | Robert J. Luck |
| Florida Supreme Court | January 7, 2019 | Peggy Quince | Retirement | January 22, 2019 | Carlos Muñiz |
| Kentucky Supreme Court | January 31, 2019 | Bill Cunningham | Retirement | March 27, 2019 | David Buckingham |
| Mississippi Supreme Court | January 31, 2019 | William Waller | Retirement | December 19, 2018 | Kenny Griffis |
| North Carolina Supreme Court | February 28, 2019 | Mark Martin | Private sector[22] | March 1, 2019 | Cheri Beasley |
| North Carolina Supreme Court | March 1, 2019 | Cheri Beasley | Apppointed to new post[23] | March 11, 2019 | Mark Davis |
| Arizona Supreme Court | March 1, 2019 | John Pelander | Retirement | April 26, 2019 | James Beene |
| Oklahoma Supreme Court | April 10, 2019 | Patrick Wyrick | Elevation to a federal judgeship[24] | November 20, 2019 | Dustin Rowe |
| Oklahoma Supreme Court | April 30, 2019 | John Reif | Retirement | September 17, 2019 | M. John Kane IV |
| Arizona Supreme Court | July 3, 2019 | Scott Bales | Private sector[25] | September 4, 2019 | Bill Montgomery |
| Texas Supreme Court | July 31, 2019 | Jeff Brown | Elevation to a federal judgeship[26] | August 26, 2019 | Jane Bland |
| New Hampshire Supreme Court | August 23, 2019 | Robert Lynn | Retirement | January 7, 2021 | Gordon MacDonald |
| Virginia Supreme Court | September 1, 2019 | Elizabeth McClanahan | Retirement | February 15, 2019 | Teresa M. Chafin |
| Vermont Supreme Court | September 1, 2019 | Marilyn Skoglund | Retirement | December 5, 2019 | William Cohen |
| Kansas Supreme Court | September 8, 2019 | Lee Johnson | Retirement | December 16, 2019 | Evelyn Z. Wilson |
| Delaware Supreme Court | October 30, 2019 | Leo E. Strine Jr. | Retirement | November 7, 2019 | Collins Seitz Jr. |
| Iowa Supreme Court | November 15, 2019 | Mark Cady | Death | January 28, 2020 | Dana Oxley |
| Florida Supreme Court | November 19, 2019 | Robert J. Luck | Elevation to a federal judgeship[27] | September 14, 2020 | Jamie Rutland Grosshans |
| Florida Supreme Court | November 20, 2019 | Barbara Lagoa | Elevation to a federal judgeship[28] | May 26, 2020 | John D. Couriel |
| Kansas Supreme Court | December 17, 2019 | Lawton Nuss | Retirement | March 11, 2020 | Keynen Wall |
| Maine Supreme Court | December 2019 | Jeffrey Hjelm | Retirement | January 6, 2020 | Catherine Connors |
See also
External links
Footnotes
- ↑ NHPR.org, "Second Time's The Charm For MacDonald, As Council Okays His Bid For N.H. Chief Justice," January 22, 2021
- ↑ 2.0 2.1 2.2 2.3 New Hampshire Governor Chris Sununu, "Governor Chris Sununu to Nominate Attorney General Gordon MacDonald as Next Chief Justice of the New Hampshire Supreme Court," June 4, 2019
- ↑ 3.0 3.1 American Judicature Society, "Methods of Judicial Selection: New Hampshire," archived October 2, 2014
- ↑ 4.0 4.1 NBC Boston, "NH Attorney General Gordon MacDonald Rejected as Chief Justice," July 10, 2019
- ↑ 5.0 5.1 Patch.com, "Executive Council Rejects AG MacDonald For NH Supreme Court," July 10, 2019
- ↑ 6.0 6.1 New Hampshire Labor News, "NH Executive Council Reject Attorney General McDonald As Chief Justice Of The Supreme Court," July 10, 2019
- ↑ Concord Monitor, "Sununu will not put forward state Supreme Court nominee until after election, he announces," September 22, 2020
- ↑ NBC Boston, "New Hampshire AG Delegates Job to Deputy During Supreme Court Nomination," January 8, 2021
- ↑ Associated Press, "Sununu once again nominating MacDonald to NH Supreme Court," January 6, 2021
- ↑ Office of the Governor of New Hampshire, "Margaret Wood Hassan, Governor, Executive Order 2013-6," accessed February 4, 2014
- ↑ State of New Hampshire Executive Council, "Overview of the Executive Council," accessed February 4, 2014
- ↑ State of New Hampshire Executive Council, "About us," accessed March 8, 2017
- ↑ 13.0 13.1 13.2 Concord Monitor, "Capital Beat: A four-judge Supreme Court for the foreseeable future," October 26, 2019
- ↑ Concord Monitor, "Executive Councilor from Hanover to vote against N.H. Supreme Court nominee MacDonald," June 29, 2019
- ↑ 15.0 15.1 Valley News, "Executive Council rejects MacDonald nomination to N.H. Supreme Court," July 10, 2019
- ↑ New Hampshire Public Radio, "New Year, Same Stalemate Over N.H. Supreme Court Justice Nomination," January 8, 2020
- ↑ Seacoast Online, "Gordon MacDonald nomination echoes that of Earl Warren," June 28, 2019
- ↑ New Hampshire Union Leader, "Sununu's pick to lead NH's high court is Robert Lynn," February 6, 2018
- ↑ nhpr, "N.H. Supreme Court Swears In New Chief Justice," April 9, 2018
- ↑ 20.0 20.1 20.2 Concord Monitor, "Court's first woman for chief justice," November 17, 2010
- ↑ New Hampshire Judicial Branch, "Chief Justice Linda Stewart Dalianis
- ↑ Martin left the court to become the dean of Regent University Law School in Virginia Beach, Virginia.
- ↑ Beasley was appointed chief justice of the court.
- ↑ Wyrick was confirmed to a seat on the Western District of Oklahoma on April 9, 2019.
- ↑ Bales left the court to become executive director of the Institute for the Advancement of the American Legal System at the University of Denver.
- ↑ Brown was confirmed to a seat on the Southern District of Texas on July 31, 2019.
- ↑ Luck was confirmed to a seat on the United States Court of Appeals for the 11th Circuit on November 19, 2019.
- ↑ Lagoa was confirmed to a seat on the United States Court of Appeals for the 11th Circuit on November 20, 2019.
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Federal courts:
First Circuit Court of Appeals • U.S. District Court: District of New Hampshire • U.S. Bankruptcy Court: District of New Hampshire
State courts:
New Hampshire Supreme Court • New Hampshire Superior Courts • New Hampshire Circuit Courts • New Hampshire Probate Courts • New Hampshire District Court • New Hampshire Family Division
State resources:
Courts in New Hampshire • New Hampshire judicial elections • Judicial selection in New Hampshire
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