Since at least 2000, our governors have knowingly usurped the Executive Council’s power to nominate judges. Courts are an essential branch of government, but we’ve learned the hard way that our rights are no longer sacrosanct in the NH courts. Nominating and appointing the best judges is critically important. The NH Constitution says that all judicial officers shall be nominated and appointed by the Governor and Executive Council. Contrary to “settled practice”, it’s a shared responsibility with each having a veto on the other.
[Art.] 46. [Nomination and Appointment of Officers.] All judicial officers, the attorney general, … shall be nominated and appointed by the governor and council; and every such nomination shall be made at least three days prior to such appointment; and no appointment shall take place, unless a majority of the council agree thereto. June 2, 1784
[Art.] 47. [Governor and Council Have Negative on Each Other.] The governor and council shall have a negative on each other, both in the nominations and appointments. Every nomination and appointment shall be signed by the governor and council, and every negative shall be also signed by the governor or council who made the same. September 5, 1792
Since at least 2000, all NH governors have issued executive orders usurping nomination power from the Executive Council.
In 2000, Governor Shaheen issue Executive Order 2000-09, appointing 7 attorneys and 4 members of the public for her nomination commission:
In 2003 ,Governor Benson issued Executive Order 2003-10 abolishing the Judicial Selection Committee without recognizing the dual role of the Executive Council:
In 2005, Governor Lynch issued Executive Order 2005-2, recreating the commission and appointing 6 attorneys and 5 members of the public:
In 2013, Governor Hassan issued an Executive Order 2013-6, appointing 9 to 11 members to her commission:
In 2017, Governor Sununu issued Executive Order 2017-01, declaring sole authority to nominate judges and appointing 9 to 11 members to his commission:
In 2025, Governor Ayotte issued Executive Order 2025-03, reaffirming Sununu, that only the Governor can nominate judges, not the Executive Council, despite the plain language of the Constitution. Ayotte appointed 4 attorneys and 1 member of the public to her commission:
You get the picture. Every governor since at least 2000 has deliberately and publicly thumbed his or her nose at the plain language of the NH Constitution.
So for example, judges aren’t required to be attorneys in NH, yet the application forms sent to the Judicial Selection Commission imply that membership in the NH bar is required.
The current members of Ayotte’s Judicial Selection Commission:
- Mary Tenn, Chair, of Tenn and Tenn, Attorneys at Law
- Timothy E. Bush, Wilson, Bush & Keefe
- Kelly Cohen, Cohen Closing & Title
- Bryan Gould, Cleveland, Waters and Bass Attorneys at Law
- Scott H. Harris, McLane Middleton
- Robert J. Lynn, Former Chief Justice of the New Hampshire Supreme Court
The person or group making the nominations controls the entire process. The usurpation by governors of the Executive Council’s authority to nominate judicial candidates can have, and has had, significant downside.
Consider the effect of school superintendents’ control of teacher nominations.
Teachers: NH RSA 189:39 How Chosen. – Superintendents shall nominate and school boards elect all teachers employed in the schools in their school administrative unit, providing such teachers hold a valid educational credential issued by the state board of education. Aug. 27, 1971.
There can be qualified, experienced, and credentialed candidates, yet a superintendent is able to nominate his favorite, non-credentialed but compliant candidates, especially for administrative positions, knowing that he can always obtain a temporary or emergency certification afterwards from the Department of Education. The board is weakened without nominating authority. A board can’t fire a superintendent who has a multi-year contract, so this behavior undermines the board and the entire district. Hiring inexperienced candidates has led to lawsuits against the district when qualified candidates realize that they were unfairly discriminated against.
Nominating power is absolutely critical for school boards with respect to teachers, and far more critical for Executive Councilors with respect to judicial nominations.
Many may remember that, as Governor Sununu’s Attorney General, Gordon MacDonald, the current NH Chief Justice, invented out of whole cloth a bogus “constitutional” justification for Sununu’s suspension of the NH Constitution and rule as de facto dictator during the Covid pandemic. Sununu later told his Executive Council to accept the nomination of MacDonald as Chief Justice or he (Sununu) would nominate only pro-choice candidates going forward. The Council was given an effective ultimatum: take MacDonald or else, because they forgot that they also have nomination power. As a result, we, the people, will suffer for six more years until MacDonald ages out.
It’s time to take our Constitution seriously: both the Governor and Executive Council have the authority to nominate judges. The Council should declare Ayotte’s Executive Order null and void, and exercise their power.
And by the way, state law ought to be amended to allow school boards to nominate district personnel. Without that power, boards are at the mercy of superintendents, just as the Executive Council is convinced they are at the mercy of governors.
