Executive Council Rejects AG MacDonald For NH Supreme Court

CONCORD, NH — The Executive Council on Wednesday shot down the nomination of the state's attorney general to serve as chief justice of the New Hampshire Supreme Court. Gordon MacDonald, who was nominated last month by GOP Gov. Chris Sununu, was rejected by a 3-2 vote along party lines, despite bipartisan support from the legal community for his nomination. The rejection came primarily due to MacDonald's previous activity with the Republican Party and his support of anti-abortion political positions.

Debora Pignatelli, one of three Executive Council Democrats who voted against the nomination, said she did not question MacDonald's skills as an attorney, but was concerned about his extensive history as "a very conservative political partisan." She accused Sununu of "trying to pack the court" with conservative judges.

Sununu condemned the vote as unprecedented in the history of New Hampshire.

"Never have we had a nominee so resoundingly supported, including the three most recent Supreme Court Chief Justices, 18 past presidents of the New Hampshire Bar Association, leaders of all political stripes, and over 100 distinguished members of the bar," the governor stated. "And never, until today, has politics ever come into play in the questioning and confirmation of nominees."

MacDonald was grilled two weeks ago during his nomination hearing about his prior political activity and a resume that included working for staunchly anti-abortion U.S. Sen. Gordon Humphrey, who served in the late-1970s and 1980s. Many in the legal community – including former chief justice and Concord attorney Chuck Douglas – said they were stunned that Roe v. Wade or any political issue would be used as a litmus test for judicial nominees, noting that Democrats working in the profession, like Jay Surdukowski of Sulloway and Hollis, actively supported MacDonald's nomination based on legal proficiency and ability. In recent days, Surdukowski circulated letters with numerous supporters of MacDonald, including prominent Democrats like state Sen. David Watters, of Dover, and victim advocate Amanda Grady-Sexton, a Concord city councilor.

Sununu added that for hundreds of years, the governor and Executive Council have worked together and never acted in a "hyper-partisan" manner, complete with the theatrics normally only seen in Washington, D.C., on judicial nominees — until MacDonald's nomination.

However, in an email to Patch, Pignatelli, the District 5 Executive Councilor representing Nashua, Amherst, Merrimack, Milford and other communities in the southern part of the state, said the nomination could not be viewed apart from national trends.

"The federal courts seem to be shifting more decisions to our country’s state courts," she said. "Two weeks ago, the U.S. Supreme Court refused to correct the worrisome partisan gerrymandering that is distorting our political system. Our own Supreme Court will likely have to rule on that issue as well as voting rights, gun safety, healthcare, women’s health issues, funding for education, taxpayer funding of parochial schools, and other critical issues. All of these are very important to me."

Pignatelli also accused Sununu of disbanding the nonpartisan Judicial Screening Committee used for 20 years by prior governors and added that he had already appointed two conservative justices, "at least one of whom was very politically active." MacDonald would be a third such nomination, she said, which would leave the New Hampshire Supreme Court with a 4-1 imbalance.

"New Hampshire is not a 4 to 1 state," she added. "I think 25 years of political elections prove that."

Sununu added that, given the outcome of MacDonald's nomination, he would not move forward on any other nominations until he had the confidence that there would be "appropriate perspective" from the Executive Council "on their responsibilities to the process and to the state."

"I am absolutely disappointed for Gordon," he added. "To have one of the most qualified and widely supported nominees in the state’s history treated in this way because of politics is reprehensible enough, but just as concerning is the damage done to our process."

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