Why the Executive Council Must Reclaim Its Constitutional Role in Judicial Selection
New Hampshire’s Constitution has never been ambiguous about judicial appointments. For more than two centuries, the process has been a shared power: the NH Constitution provides that the Governor and the Executive Council share responsibility for nominating and appointing Judges and Justices. It was a structure designed to prevent unilateral control, distribute power, and shield the courts from the personal agendas of any one elected official. But the Governor is now carrying sole responsibility to nominate, and the Executive Council holds a public hearing and provides final approval.
As Doris Hohensee’s December 2025 GraniteGrok article documents, that balance shifted dramatically over the last fifty years, through a long, quiet erosion, punctuated by statutory changes, modified rules, and a governor-controlled “Judicial Selection Committee” that has been reshaped repeatedly. The Governor now effectively selects the pool of candidates, the finalists, and the nominees. The Executive Council, once an active partner in the search, is reduced to a yes-or-no vote.
This change may appear procedural, but its consequences are profound.
A Judiciary Increasingly Reflective of a Single Officeholder’s Preferences
Historically, New Hampshire promoted its Supreme Court justices from within the judiciary itself. For decades, it was common, expected, even, that two or three members of the high court came from the Superior Court bench. They brought deep experience in trial procedure, statutory interpretation, evidentiary rulings, and the work of real litigants.
That tradition is gone.
In the last decade, with Republican governors controlling the Judicial Selection Committee, the appointments have overwhelmingly come from personal networks, not the bench pipeline:
- Justice Donovan — private practice
- Justice Marconi — private practice
- Chief Justice MacDonald — Attorney General’s Office & Private Practice
- Justice Gould — private practice
- Justice Countway — civil court judge, the first of his kind ever elevated to the Supreme Court seat.
The last justice with traditional Superior Court experience, Justice Gary Hicks, who joined the Supremes in 2006, retired in 2023. So, the majority of our current Justices never wore a robe before landing on the State’s highest court.
When governors dominate every step of the selection process before a name even reaches the Executive Council, the Council is deprived of the ability to serve as the public’s independent constitutional safeguard. The result is predictable:
A Supreme Court that looks less like an independent branch of government and more like the Governor’s advisory cabinet.
The Executive Council’s “Approval” Role Is Not a Check—It’s a Form of Political Theater
Supporters of the current system argue that because the Executive Council must still vote on nominees, the process remains balanced.
That’s not reality.
An Executive Council aligned with the governor’s party almost never rejects nominees. And if the governor’s party controls a majority (3–2), the outcome is predetermined. It becomes a politically choreographed event.
Worse, the Council is not involved in recruiting, identifying, or vetting candidates before the Governor chooses them. Councillors aren’t reviewing the broader applicant pool; they are reviewing exactly one name. The one name handpicked by the Governor’s personally controlled committee.
The Council’s record speaks for itself:
They get judicial appointments “right” 100% of the time. No mis-hires. No reconsiderations. No failed placements.
Anyone who has ever worked in private business knows how absurd that is. Hiring for executive-level positions is difficult, and corporations sometimes discover, too late, that a hire isn’t suitable. When that happens, the hire is replaced. But a judicial appointment in New Hampshire is not replaced. There is:
- no probationary period,
- no annual performance review (only conducted every 3 years)
- no meaningful removal process, and
- no public oversight once the justice is seated.
A bad appointment is a lifetime problem for the public. They age out at 70, but, once again, retired Justice Robert Lynn, chair of the House Judiciary Committee, is sponsoring a constitutional amendment again to raise the age to 75. I am not a supporter.
Personal Loyalty is Crowding Out Public Merit
The Governors of the past decade have displayed a clear preference for political allies, long-standing acquaintances, and individuals tied to their own professional circles. The trend is unmistakable:
- fewer career judges,
- more private-sector lawyers,
- greater emphasis on loyalty, and
- less emphasis on deep judicial experience.
This is not without consequences. Judges elevated without the grounding of years of trial-court service may be:
- less familiar with real courtroom dynamics;
- less experienced in managing complex litigation;
- more aligned with the appointing Governor’s ideology or personal expectations; and
- more likely to carry the political perspectives of their prior networks into judicial reasoning.
The hiring process has created a judiciary that serves those who appoint rather than those who are governed.
What This Means for the Public—And Why It Matters Now
Over five years of direct courtroom experience, I have seen the effects of this shift firsthand. Judges who were praised for “hard work” and “dedication” by the Executive Council have struggled with:
- fundamental questions of law,
- impartiality,
- procedural fairness,
- due process standards, and
- basic judicial temperament.
Good intentions do not equal judicial competence. A friend of the Governor does not equal judicial independence. When the process rewards loyalty over merit, the public loses. And when the Executive Council reduces its constitutional responsibility to a ceremonial vote, the legitimacy of the judiciary itself comes into question.
Restoring Balance: What New Hampshire Must Confront
How do we ensure judicial independence when one officeholder effectively controls the entire nomination pipeline?
Possible reforms requiring legislative rulemaking authority include:
- Reestablishing the Executive Council as an independent entity in the recruitment and identification of judicial candidates, ensuring the people, not just the Governor, have meaningful representation in the selection process.
- Reforming the Judicial Selection Committee to ensure bipartisan, citizen-led participation, not merely gubernatorial appointment. Legislation is in the works on this.
- Instituting judicial probation or performance review periods for newly appointed judges.
- Reintroducing a preference for elevating experienced Superior Court judges to Supreme Court seats.
- Increasing transparency in the selection and vetting process by expanding the Judicial Selection Commission to include members of the public.
New Hampshire deserves a judiciary chosen for its excellence, not its political alignments, personal connections, or its usefulness to a Governor’s long-term agenda. Courts Must Serve the Public, not the powerful.
The Constitution envisioned a collaborative, balanced process. What we have today is an imbalance that undermines public trust and risks producing courts that reflect political favoritism rather than legal expertise.
If we want a judiciary committed to fairness, competence, and independence, then the people and the Executive Council must reclaim the constitutional authority intended to protect us from exactly this kind of consolidation of power. The courts belong to the public. Their selection should too.
