Gov. Kelly Ayotte has tapped veteran GOP attorney Bryan K. Gould of Concord to serve as an associate justice on the New Hampshire Supreme Court, her first nominee to the state’s highest court.
Ayotte announced the nomination ahead of Wednesday’s Executive Council meeting, where she will formally put forward his nomination.
“Bryan Gould is an accomplished attorney with the depth of knowledge, integrity, and service needed to serve as an Associate Justice of the Supreme Court,” Ayotte said in a statement. “I know Bryan will uphold our Constitution as he evaluates cases that come before the Court. Granite Staters will be well served by his fairness and sound judgment.”
Jim Merrill, managing shareholder of Bernstein Shur’s New Hampshire office, praised Ayotte’s pick.
“Gov. Ayotte’s nomination of Bryan Gould is a home run, period. It is hard to think of someone more qualified for this critical role. He is not only an outstanding and highly regarded attorney, but a principled constitutional conservative who has a deep understanding of, and experience with, New Hampshire government,” Merrill said.
Gould’s bona fides are beyond question, having appeared multiple times before the state’s highest court to litigate high-profile issues, such as election law, during his 35-year career. He also served as special counsel to former GOP Gov. Craig Benson at the same time Ayotte served as the state’s attorney general. And he was counsel to the Executive Council, advising on complex regulatory and legal issues.
“Serving on the Supreme Court of New Hampshire means making a commitment to putting the law and the constitutions of the United States and New Hampshire over one’s personal beliefs,” Gould said in a statement. “Having argued before courts countless times, I understand the weight a judge’s decision carries and will be dedicated to the obligation to be fair and impartial in my decision-making. I thank Gov. Ayotte for her trust in nominating me.”
The puzzling part of Gould’s pick, several Republicans said, isn’t the politics or the law, but the math: Gould is 66 years old.
Under the New Hampshire Constitution, all judicial officers are required to retire at the age of 70, leaving Gould with just four years of potential service. Not much time to build a legacy for either Gould or the governor.
So why pick a short-timer?
“This pick is about one case, and one case only: Claremont,” one GOP insider told NHJournal on background. “Gould is a torpedo pointed right at the Claremont decision. That’s the ‘legacy.'”
Claremont is shorthand for a series of controversial judicial rulings regarding state funding of K-12 education. The battle has waged since 1993, when the state Supreme Court ruled that the New Hampshire Constitution guarantees every child the right to a constitutionally “adequate” education, placing the duty to provide and fund it on the state, rather than on local school districts and taxpayers.
In a series of decisions, the high court struck down reliance on local property taxes, ordered lawmakers to define what “adequacy” means, determine its true cost, and fund it through equal statewide taxation. The result has been a series of ongoing legal battles, the most recent of which resulted in a 3-2 ruling this summer that the state is not adequately funding local schools.
Critics of that ruling were quick to note that the majority consisted of just one sitting member of the court — Associate Justice James Bassett — and two fill-in justices covering for GOP-nominated members of the bench. Many Republicans in the state legislature want the court to revisit the Claremont rulings and reaffirm the right of the elected legislature to determine how much to spend on education.
Gould’s nomination will have to be confirmed by the Executive Council and its 4-1 GOP majority, and one councilor has already made it clear that Claremont is a key part of his calculations.
“I will have litmus tests for the next Supreme Court justice, and they better be on the right side of Claremont,” Councilor Dave Wheeler (R-Milford) said.
Other Republicans say Gould is a good pick who is ready to go.
“I have known Bryan Gould for many years and admire him greatly,” said attorney Sean List. “He is exceptionally qualified for service on the Supreme Court. He is fair, composed, intellectually sharp, and deeply principled. I am confident that he will interpret the law with an even hand, guided by a disciplined and textualist approach. I believe he will be an outstanding addition to the bench.”
A Utah native, Gould earned his law degree from the University of Utah College of Law, where he was recognized as a Wm. H. Leary Scholar, and graduated cum laude from Utah State University.
“In a time when activist judges try to inject their personal politics into their decision-making, Gov. Ayotte recognized the need to nominate a principled conservative who will not legislate from the bench,” said state GOP chair Jim MacEachern. “I urge the Executive Council to confirm his nomination without delay.”
