State Sen. Dan Feltes has made abortion the centerpiece of his attacks on Gov. Chris Sununu. It’s an interesting political strategy given that Sununu is pro-choice, and New Hampshire has virtually no state laws regulating abortion.
But now legal experts are suggesting that in his effort to own the choice issue, Feltes may be running afoul of the law.
During a Facebook Live segment with WMUR’s Adam Sexton, the Democratic gubernatorial candidate was asked about his litmus test for appointing judges, demanding that they all commit to being pro-choice.
“Sen. Feltes, you’ve said you would only appoint judges who are pro-abortion,” the questioner noted. “The New Hampshire Code of Judicial Conduct states that a candidate for judicial office cannot ‘make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.’ Aren’t you asking potential judges to violate the judicial code of conduct by pre-committing to rule in favor of pro-abortion in any dispute?”
Feltes defended his litmus test by insisting that pro-choice judicial rulings are beyond a matter of law. “No. It’s a baseline, threshold, fundamental right.” Feltes went on to accuse Sununu of wanting to “appoint justices that would make abortion illegal, he has supported justices that would make abortion illegal.”
“I’m pledging to nominate a pro-choice woman because reproductive rights are under attack in New Hampshire,” Feltes said.
Sexton followed up by reading the code to Feltes and asking, “How do you plan to ask that question and get around the code of conduct?”
“It’s pretty simple, Adam. It’s like ‘Are you pro-freedom of speech?’ Well, ‘are you pro-choice? It’s not like asking a potential nominee to weigh in on a potential case.”
Except that, as Justice Ruth Bader Ginsburg established during her hearings before the U.S. Senate Judiciary Committee, it is.
Feltes’ litmus test drew the ire of former New Hampshire Supreme Court Chief Justice Bob Lynn.
“During my career, I went through the judicial appointment process on four separate occasions under both Democrat and Republican Governors and at no point did they nor any of their staffs ever ask me how I would rule on any specific case or issue,” Lynn said, referencing Rule 4.2(A)(2)(a) of the New Hampshire Code of Judicial Conduct, Supreme Court Rule 38.
“So, unless Senator Feltes expects his judicial nominees to violate the Code, or unless he intends to ask the Supreme Court to repeal these rules or ask the legislature to enact a statute overruling them (assuming the latter could be done without offending the separation of powers doctrine), it is hard to see how he will get the commitments he desires,” Lynn said.
Gov. Sununu also rejects litmus tests. “As Governor, I have nominated both Democrats and Republicans for judicial appointments, and have never asked for a litmus test on any issue — judicial independence is paramount.”
And then there’s the obvious question: How would a New Hampshire judge “make abortion illegal?” How is that even possible?
The Feltes campaign declined to answer the question.
This isn’t the only legally-questionable pledge Feltes has made in pursuit of pro-choice bona fides. He has repeatedly attacked Sununu for “sending COVID relief money to an anti-abortion counseling center,” the group Options for Women (OFW) in Rochester.
It’s true that OFW received about $65,000 of the $60 million Nonprofit Emergency Relief Fund through the Governor’s Office for Emergency Relief and Recovery (GOFERR). It was one of the hundreds of grants awarded to local nonprofits, from The Actorsingers (“Quality Community Theatre since 1955”) to You Are Not Alone, “a safe, substance-free, twelve-step environment” in Keene.
But Gov. Sununu played no role in awarding the money.
“The New Hampshire Nonprofit Emergency Relief Fund is administered by the NH Center for Nonprofits, the New Hampshire Charitable Foundation, and the New Hampshire Community Development Finance Authority, who made all award recommendations,” said GOFERR Executive Director Taylor Caswell. “The organization in question met the Fund’s eligibility criteria and they were recommended for an award based on their COVID-19 related revenue losses and expenses.”
That last part is key. How would a Gov. Feltes deny a nonprofit the funding it qualified for? Based solely on his objection to their beliefs? Does New Hampshire want politicians picking and choosing politically-correct charities?
Veteran Granite State attorney Bryan Gould sees a problem.
“Ordinarily, the way politicians get away with viewpoint discrimination is to camouflage it with a plausibly objective standard that excludes the disfavored viewpoint,” Gould said. “Feltes’s admission that he intends to discriminate against an organization based on its policy views makes that ploy much more difficult.
“All I can say is that I think our state Supreme Court would take a very dim view of what Feltes has proposed,” Gould said.
Feltes was also asked during the Facebook Live interview why he kept attacking Chris Sununu. “Because it’s fun!” he replied. If he continues to threaten to break the law as part of his campaign strategy, Sununu may get the last laugh.