Governor Sununu has nominated his Attorney General, Gordon MacDonald, to replace retiring Supreme Court Chief Justice Robert Lynn. Lynn was the closest thing to a judicial conservative on the Supreme Court. There are unmistakable signs that MacDonald is not.
First, let’s define judicial conservative. A judicial conservative is a completely different animal from a judicial liberal and from a political conservative. A judicial liberal is a judge who whenever possible will reach a liberal political result. Essentially, the judicial liberal decides what the “right result” is and then strives to find some plausible way to reason backwards to that result.
A political conservative describes someone’s political leanings, not his or her philosophy of judging. For example, Justice Scalia, while very politically conservative, reached liberal results in many cases. For example, ruling that burning the American flag was constitutionally protected free speech. What made Scalia a judicial conservative was his philosophy of judging – an originalist when it came to interpreting the constitution (giving constitutional provisions the public meaning they had at the time of their adoption) and a textualist when it came to interpreting statutes (discerning legislative intent from the words of the statute, not from extra-textual sources like “legislative history”).
An unmistakable sign that MacDonald is not a judicial conservative is the following answer from his application to be Chief Justice:
No mention of judicial philosophy, which is the most important criteria for selecting a judge and is of paramount importance for a seat on a supreme court.
Only individuals whose judicial philosophy is based on originalism and textualism are qualified to serve as a judge. Simply put, a judge who is NOT an originalist/textualist is a judge who to some degree substitutes or adds his or her own policy preferences for or to what the law says.
Textualism refers to the interpretation of statutes. A textualist interprets statutes based on the reasonable meaning of the words in the statute, without considering material outside the statutory text such as “legislative intent.” In other words, textualism is based on the concept that we are governed by the laws a legislature actually passes, not what a judge claims the legislature thought it was passing or what a judge thinks the legislature should have passed.
Originalism is the application of textualism to constitutional provisions. It recognizes that constitutions by their nature cannot contain the same type of detail as statutes, so constitutional provisions should be interpreted expansively, rather than narrowly. An example is interpreting the First Amendment to protect flag-burning because flag-burning while not technically speech has the same purpose as speech criticizing or denouncing America or some aspect of America. However, an expansive interpretation does not mean an unmoored interpretation, such as interpreting a duty to cherish public schools to mean a judicially enforceable right to an “adequate” curriculum (adequacy to be determined ultimately by the judiciary) and to “adequate” State spending on public education (adequacy again to be determined ultimately by the judiciary).
(At the end of this post, I will -in case anyone is interested- list the other criteria for judicial service.)
That MacDonald failed to list judicial philosophy at all in the attributes he would consider in assessing a judicial nominee strongly suggests that he is NOT a judicial conservative. And, to reiterate, a judge who is NOT a judicial conservative is a judge who to some degree substitutes or adds his or her own policy preferences for or to what the constitution or the statute or regulation says.
Another ominous sign is this answer:
John Broderick was one of the most liberal/activist judges to ever serve on the New Hampshire Supreme Court. As but one example, in 2006 he was ready to order -essentially- a judicial takeover of public education:
… we will retain jurisdiction with the expectation that the political branches will define with specificity the components of a constitutionally adequate education before the end of fiscal year 2007. Should they fail to do so, we will then be required to take further action to enforce the mandates of Part II, Article 83 of the New Hampshire Constitution. Such appropriate remedies may include: … (2) appointing a special master to aid in the determination of the definition of a constitutionally adequate education,… or (3) … remanding the case to the trial court “for further factual development and a determination of whether the State is providing sufficient funding to pay for a constitutionally adequate education.”
There is simply no way that Broderick would recommend MacDonald if he believed for an instant that MacDonald was a judicial conservative because a judicial conservative would if not outright overrule Claremont at the first opportunity at least severely circumscribe the Court’s interference with the political branches.
And as for that deranged Never-Trumper and stalwart supporter of John Kasich, Gordon Humphrey, do we really want to take his advice on anything?
MacDonald is Sununu’s third State Supreme Court nomination. Since the Supreme Court has only five justices, Sununu had a priceless opportunity to remake the court into a legal institution.
Opportunity squandered.
P. S. – here are the other criteria for judicial service:
2. Intellectual capacity. Being an originalist/textualist is not a mechanical exercise. Consider the question discussed above of whether flag-burning is protected by the First Amendment. Or whether mandating that everyone purchase a health insurance policy falls within the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Or whether a statute providing an enhanced penalty for the use of a firearm in the commission of a crime applies to a barter involving a gun for cocaine. In addition to having the capacity to determine the meaning of complicated statutes and the scope of constitutional provisions that may be hundreds of years old, the judge must be able to apply the law to novel or complex facts. And the judge must be able to write an opinion that allows the other branches and the public to understand that the judge reached the correct result.
3. Experience. Our State Constitution was adopted in 1784 and the number of judicial decisions interpreting it is legion. There is also a multitudinous number of statutes and regulations. There is also common or judge-made law, such as the law of negligence. There are also various rules of procedure. Judicial nominees need a familiarity with this vast legal framework.
4. Integrity. The nominee should NOT be someone who will “grow in office,” which is a lovely euphemism for becoming a liberal, activist judge in order to please a press and a bar that is largely hostile to judges who practice originalism/textualism. A candidate with a paper trail showing that he or she adheres to a judicial philosophy based on originalism/textualism suggests that he or she will be less likely to bow to the prevailing political winds if placed on the bench.
5. Demeanor. Judges must conduct themselves in a way that gives the other branches and the public confidence that the decisions they reach are based on the law and solely on the law. For example, a judge declaring “Black Lives Matter” in open court as Judge Robart -the federal district court judge that struck down President Trump’s travel ban- did in a case in which he sided against a police union is not.
