CONCORD, NH — Republican Executive Councilor Russell Prescott hasn’t given up on getting Attorney General Gordon MacDonald approved as Chief Justice of the New Hampshire Supreme Court three months after his three Democratic counterparts turned thumbs down on Gov. Chris Sununu’s nomination.
At the Executive Council’s meeting on July 10, Prescott of Kingston and fellow Republican Ted Gatsas of Manchester favored MacDonald, but Democrats Debora Pignatelli of Nashua, Andru Volinsky of Concord and Mike Cryans of Hanover voted against approving MacDonald, prompting Sununu at the time to refuse to bring forward other judicial nominations.
At last week’s council meeting in Rye, Prescott handed Sununu and councilors a packet showing what most former governors took into consideration when selecting judicial candidates by including past executive orders they signed establishing their own Judicial Selection Commissions.
“It shows the nomination process in the past has been taking into account qualifications, not political affiliations,” Prescott said on Tuesday.
If at least one Democratic councilor is willing to change his or her vote, MacDonald’s name could be brought forward for a new vote, Prescott said.
“This is an opportunity to take a breather and review what has been done. We’ve always had unbiased nominations and it became biased (at confirmation). We need to take a second look,” Prescott said.
Prescott said to get an unbiased judge requires an unbiased selection and confirmation process. Sununu and MacDonald are aware of his efforts, Prescott said, but he is in no rush. Instead, he is waiting to hear from the Democrats.
When Sununu refused to take up the appointment of Democrat Martin Honigberg after MacDonald’s nomination was shot down, it was Prescott who asked that it be taken up at a later meeting.
“What matters is when the person puts on the robe of a judge, everyone is treated equally,” Prescott said.
The council meets again in two weeks, but Prescott said he is in no hurry. “People need to come to their own decisions, without pressure,” Prescott said.
The three Democrats didn’t discuss Prescott’s packet at last week’s meeting and did not respond to emails seeking comment Monday and Tuesday. In July, they spoke out against MacDonald’s nomination because of lack of judicial experience, but both Pignatelli and Volinsky said they were most troubled by MacDonald’s conservative, partisan activism.
Volinsky explained his vote to oppose MacDonald July 10 at the meeting in Littleton.
“Some of you attended the confirmation hearing. Here is why I asked the questions I did: Mr. MacDonald has worked for and supported highly partisan politicians with shockingly extreme views,” Volinsky said. “I asked (MacDonald), ‘were there times where you separated yourself from these extreme views?’ and there were none.”
“I am afraid that the extremism of the day has conspired to defeat this nomination,” Volinsky said. “In these times, I cannot assume that the law of the land will hold. Civil rights are not free from abandonment…You cannot, on the one hand, undermine the rule of law through Koch brothers-funded initiatives, and on the other hand, demand that I trust the judge because he must follow the rule of law.”
Pignatelli said at the hearing that she could not support MacDonald although she said she has supported conservatives like Justice Robert Lynn in the past.
“What concerns me most, though, is that he has an extensive history as a very conservative, political partisan. That gives me no comfort on how he would interpret our state Constitution on the momentous legal questions I mentioned, and on many more. And that is by no means limited to the (reproductive) choice issue,” Pignatelli said, referring to Roe v. Wade.
“Some see me as a partisan, but I face the voters every two years and am not nominated for the state’s most important appointment to age 70,” she said.
In July, Sununu accused the Democrats on the council, who voted against the MacDonald nomination, of using Washington, D.C. “theatrics” to enter what has been in the past, a non-partisan process of selection to the court.