A grassroots group opposed to Governor Chris Sununu’s COVID-19 orders has launched a petition opposing his nomination of Attorney General Gordon MacDonald to become the next chief justice of the New Hampshire Supreme Court. Sununu first nominated MacDonald in 2019 but Democrats used their Executive Council majority to block him, despite wide, bipartisan support for the nominee.
“This body has a tradition going back literally hundreds of years, working in a nonpartisan manner, executing their responsibility of confirming nominees based on their qualifications, body of work, and merit – without political bias,” Sununu said in a statement following the 2019 Council vote denying his judicial appointment. “Today, the Executive Council has thrown that right out the window.”
With a 4-1 GOP majority on the Council — in no small part due to Sununu’s efforts in November’s election — the governor is sending MacDonald back to an all-but-certain confirmation. Not that there won’t be a few fireworks.
The lone Democrat on the Council, Cinde Warmington, has already said she’ll vote against MacDonald based on pure partisan considerations (No Democrat has suggested the veteran lawyer is less than qualified for the job.)
The more interesting opposition is coming from the Right.
RebuildNH “strongly opposes” MacDonald’s nomination claiming, “In his duties as attorney general, he has repeatedly violated his oath to the Constitution and is not fit to serve as protector of the Constitution in any further manner,” according to a petition launched on Thursday.
One objection raised on the petition is MacDonald’s treatment of religious liberty. “In State vs. Mack, Attorney General MacDonald urged the Supreme Court to adopt a hard-line stance against religious liberty. We shudder to think what would happen to this most fundamental of rights should he be on the Supreme Court,” the petition reads.
Opponents of the Sununu administration’s handling of COVID-19 aren’t the only Granite State conservatives raising concerns.
Cornerstone, a local, faith-based nonprofit, is challenging the choice. “Citizens should call upon the Executive Council to question MacDonald about his views on the suspension of constitutional rights,” wrote Ian Huyett in a recent NHJournal op-ed. Huyett, general counsel and director of policy at Cornerstone, asks: “Does MacDonald see constitutional rights as fixed, or does he believe they can be simply set aside by the exigencies of executive power? This does not mean asking MacDonald how he will decide some particular case. It simply means asking MacDonald to state that he will always apply the very rights that he will soon swear to uphold.”
MacDonald, who recently stepped aside as Attorney General while his nomination is being considered, has also come under fire following the January 6th violence in D.C. for his membership in the Republican Attorneys General Association (RAGA). The organization’s executive director, Adam Piper, was forced from his job after approving a robocall urging listeners to march on the Capitol on the eve of the violence.
“This is sedition. This is violence,” Warmington told WMUR. “And it resulted in the death of a Capitol policeman and the deaths of others.”
AG MacDonald’s office said he hasn’t participated in the group since 2017, and his membership is a de facto result of being both a Republican and an Attorney General. “Sending out such a call from a group of attorneys general is plainly wrong, and Attorney General MacDonald denounces it. He condemns the violence that occurred in the strongest possible terms,” his office said.
Like so many of RebuildNH’s efforts, this one is also likely to fail, in part because of MacDonald’s standing in the legal and political communities. But also because the anti-COVID organization’s standing has fallen as the virus’s reach has gone from a few dozen to more than 800 cases on a typical day. And, the rampaging Trump supporters in D.C. put all protests in a different political light.
MacDonald’s confirmation is likely to happen before February, sources tell NHJournal, though he’ll face some tough questions at his public hearing. With MacDonald’s elevation, all eyes will then turn to Governor Sununu’s next Attorney General pick.
The Chief Justice seat has officially been vacant since August 2019. Chief Justice Robert Lynn, a Windham Republican, resigned just before turning age 70 on August 23, 2019, due to the Constitutional age limit on judges in New Hampshire.