By GARRY RAYNO, InDepthNH.org
CONCORD — Many colleagues and friends testified to the integrity, ability, compassion and ethics of Attorney General Gordon MacDonald who Gov. Chris Sununu nominated to be the next Chief Justice of the New Hampshire Supreme Court.
But he also faced questions about his political activity, his views on abortion and voting rights, and whether his office acted in a partisan manner under his leadership.
MacDonald assured members of the Executive Council, which held a public hearing Wednesday on his nomination, he believes Roe versus Wade, which legalized abortion, is settled law, as are court precedents, that he has the discipline to put aside his personal views to judge cases on the evidence and the law, and he possesses the skills to lead the court system although he has no judicial experience. The Council also held a much shorter and less contentious hearing on Sununu’s nomination of Public Utilities Commission Chair Martin Honigberg to be a Superior Court judge.
MacDonald also declined to answer questions directly about the possibility of abortion rights at the state level if Roe versus Wade is overturned on the federal level, on voting restrictions and gun rights citing a legal rule prohibiting direct comment on issues that may come before the court if he is confirmed.
“A judge must be fair and impartial, that is a principal enshrined in our constitution,” MacDonald told the council. “Those who serve the public should do so with humility and respect, that is especially true for judges.’
His supporters said he treats everyone with respect and has done yeoman work to improve access to justice for those unable to afford legal representation.
“It is critical to remember at the center of every case are real people who are involved in a real dispute with real consequences for them,” MacDonald said.
Past and current chief justices supported his nomination as did members of the Attorney General’s Office, attorneys of varying political philosophies, state department heads, lobbyists, friends and people who he touched through the judicial process.
MacDonald’s former law partner Scott O’Connell said people in their law firm turned to him for advice particularly on ethical issues.
“Gordon’s character is as strong as granite,” O’Connell said. “I am a Democrat and I have no problem with him as chief justice. He will apply the law.”
While supporters outnumbered detractors by three to one, several opponents had other stories: that the Attorney General’s Office wasted $300,000 prosecuting a Northwood woman for a Facebook post targeting the Granite State Credit Union, and another claimed the office failed to prosecute a Republican Representative despite ample evidence he clearly committed fraud.
Janet Delfuoco was found not guilty of the criminal charges in Strafford County Superior Court.
She was accused of making threatening remarks on her Facebook page against two judges, lawyers and Granite State Credit Union officials.
“Mr. MacDonald ruined my life,” Delfuoco told the councilors. “I ask you not to make him Chief Justice and hold off until this can be investigated.”
Ruth Larson of Alton said MacDonald swore to uphold the law during his public hearing to be attorney general, but after an investigation by the Belknap County Sheriff into allegations a Republican Representative committed perjury, a class b felony, and additional investigation by the Attorney General’s Office, the office sat on the evidence and eventually closed their files.
“Can’t you imagine if the representative in question had been a Democrat,” Larson said, “the outcry and statements.”
The toughest questions MacDonald faced came from two Democratic councilors who pushed him on abortion, voting rights, vouchers, environmental regulation, his affiliation with conservative political organizations and the partisan makeup of the court.
District 2 Councilor Andru Volinsky, D-Concord, noted MacDonald had been senior advisor to former U.S. Sen. Gordon Humphrey who had a perfect score from the Right to Life organization opposing abortion rights.
“During the time you worked with Sen. Humphrey did you ever publicly articulate a more balanced approach to abortion rights than Sen. Humphrey’s,” Volinsky asked.
“I am here to be judged as a judge and not here to be judged on Sen. Humphrey’s beliefs or my beliefs,” MacDonald said. “Whether Sen. Humphrey said something 30 years ago is not indicative of my ability to set aside my personal beliefs.”
Volinsky also pressed MacDonald on being a board member of the Josiah Bartlett Center, a conservative organization that supports school vouchers. Volinsky asked if that had any impact on why his office changed its advice to lawmakers about a bill creating a voucher program.
Volinsky noted at first the department questioned the constitutionality of the bill allowing religious affiliated schools to use state tax money, but reversed course in a three-line email to the House Speaker’s chief of staff.
MacDonald said he could have done a better job as the intent was to say his office has an obligation to defend what lawmakers approve unless it is patently illegal or unconstitutional.
Volinsky also noted if MacDonald is confirmed there would be three justices on the Supreme Court with no judicial experience sitting on the state’s highest court.
“We are all very concerned about the reputation of our court system,” Volinsky said. “Does it have an impact on the reputation of our court system to have three justices in a row without any (judicial) experience.”
MacDonald said not really, but Volinsky noted the current court decided to issue an opinion on a voting rights bill, that the previous court declined to take up without a “more factual basis.”
The three justices in favor were the chief justice and the two most recent appointments, all nominated by Sununu.
MacDonald quoted from former Chief Justice John King who also served three terms as governor saying King worked to arrive at unanimous decisions for election law and other high profile cases.
MacDonald said King believed unanimous agreement was needed to protect the integrity of the institution and not come down on one side or the other and he called it a wise practice.
“The court is not a political branch,” MacDonald said, “and should do all it can to avoid partisan politics.”
But most people were at the four-plus hour hearing to support MacDonald, including former Supreme Court Chief Justice John Broderick.
“I have known Gordon MacDonald for years and I know what the job of chief justice is. I have done the job,” Broderick said. “He will do a fine job. I have been a judge and a lawyer in this state for 47 years and I would not be here at this table if I had any reservations whatsoever.”
Former Deputy Attorney General Ann Rice said she had reservations when she heard MacDonald was nominated as attorney general because of his partisan political involvement, but he won her over with his openness and integrity.
“He is the kind of person we want on the Supreme Court,” Rice said.
MacDonald has been Attorney General since April 2017 and is on a leave of absence since his nomination. As attorney general, MacDonald established the department’s first Civil Rights Unit, and led an effort to create the position of Solicitor General, which consolidated all state appeals under a chief legal officer.
Prior to serving as Attorney General, MacDonald was a Partner at Nixon Peabody LLP in Manchester, where he was a member of the Commercial Litigation Practice Group. He is a graduate of Dartmouth College and Cornell Law School.
Before entering private practice, MacDonald was a judicial law clerk to Judge Norman H. Stahl of the United States Court of Appeals for the First Circuit and has been a member of the New Hampshire Bar since 1995.
Among the clients he represented in private practice are Purdue Pharma, the state Republican Party, the Diocese of Manchester, and Dartmouth Hitchcock-Clinic.
MacDonald was on the staff of former U.S. Senator Gordon Humphrey for seven years and in 2016 was a delegate for Florida U.S. Sen. Marco Rubio at the 2016 Republican national convention.
The councilors were not sure when they would vote on the nominations.
The Executive Council also held a much shorter and less contentious hearing on Sununu’s nomination of Public Utilities Commission Chair Martin Honigberg to be a superior court judge.
Honigberg told the council he has always wanted to be a judge, noting he has thought about it for some time.
He was supported by the other two public utilities commissioners Kathryn Bailey and Michael Giaimo as well as several staff members who all praised his integrity, fairness and intelligence
“Marty cares about New Hampshire, he cares about public service, he cares about getting things right,” Bailey said.
Honigberg has been chair of the Public Utilities Commission since December 2013 and is a graduate of Amherst College and received his judicial degree from Vanderbilt University.
He was with the Concord law firm Sulloway & Hollis, LLC before being named to the PUC.
Honigberg served in the Attorney General’s Office and was special council to former Gov. Jeanne Shaheen.
Before coming to New Hampshire, he was at the Dickstein Shapiro & Morin in Washington D.C. and with Goodwin Procter & Hoar in Boston.
Garry Rayno may be reached at firstname.lastname@example.org
Correction: Janet Delfuoco was found not guilty of the criminal charges in Strafford County Superior Court. The judge didn’t dismiss them as stated in previous version.