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What To Expect From A N.H. Supreme Court Led By Gordon MacDonald

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Dan Tuohy / NHPR
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Gordon MacDonald will be sworn in Thursday as the new chief justice of the New Hampshire Supreme Court. For MacDonald, who until recently was New Hampshire's attorney general, this day was a long time coming.

Gov. Chris Sununu first nominated MacDonald to the court almost two years ago. When the then Democratically-controlled Executive Council rejected MacDonald, Sununu chose to leave the chief justice job open until a new council was seated earlier this year. 

Morning Edition host Rick Ganley spoke with NHPR's senior political reporter Josh Rogers about MacDonald's move to the court.

Rick Ganley: So today is the day for Gordon MacDonald. The court has been operating without a chief justice for some time now. What does his arrival mean?

Josh Rogers: Well, at a minimum, it means the Supreme Court will have a full bench of five justices. It also means the court system as a whole will have an administrator. One role the chief justice has is overseeing the entire court system. And, you know, COVID has put more stress on the court system. There's a big jury trial backlog. There are other access questions -- really system-wide, some long-standing -- that Gordon MacDonald will likely have a big say over.

As far as what he does on the bench itself, ruling on cases, it's a little harder to say. Gordon MacDonald's obviously never been a judge before. It's fair to call his personal politics conservative based on his involvement in electoral politics. He was also the founder of New Hampshire chapter of the Federalist Society in 2013. So there's that we can go on. As we recall, MacDonald's conservative views, including on abortion, were raised by Democrats during his confirmation process.

And given the current U.S. Supreme Court and with the GOP Legislature now considering abortion limits, it's really not inconceivable that issues touching abortion could end up in state courts. MacDonald has said he considers Roe v. Wade settled law, but little other than that, and his past work for politicians hostile to abortion rights, is known on that front.

Rick Ganley: But what about potential cases that he may rule on? Do you know what's on the docket for the state Supreme Court?

Josh Rogers: Well, there's a list of accepted cases. But as far as big matters, one thing that could come to the surface on MacDonald's watch are voting issues. The U.S. Supreme Court saying that political gerrymandering is permitted could mean that state courts will be busier on that front than they have been. 2020 is a redistricting year in New Hampshire. Republicans want maps that favor their party. That mix could put the matter in state courts. You know, we don't really know what's going to come in terms of many individual cases, but talk to lawyers across the political spectrum about Gordon MacDonald and pretty much all of them will say they respect his intellect and see him as being a scrupulous person ethically.

Rick Ganley: Well, MacDonald has been attorney general for five years. That office does get involved with lots of cases that do end up before the Supreme Court. MacDonald has said that he'll recuse himself from matters touched by the office during his tenure. What are the implications of that?

Josh Rogers: Well, some lawyers and judicial ethicists I've spoken with think MacDonald's recusal issues are really kind of pedestrian, the sorts of things that judges all over the place face all the time. Others think significant issues could crop up for some time, given how many issues the attorney general's office touches that end up before the Supreme Court. And it's worth remembering that major public policy does get made in New Hampshire via court decision. You can think of school funding. Gordon MacDonald will certainly be sitting out that stuff for a while, given the attorney general's office involvement in the current school funding case before the court.

There will be cases regarding policing that could shape the policy landscape here, too. MacDonald's likely going to be off a lot of those, perhaps because of the AG's involvement in some matters. But there's also MacDonald's role on Gov. Sununu's law enforcement reform task force, which he helped lead. That could take him out of lots of issues regarding policing as well.

Rick Ganley: I know, Josh, that you've talked to a lot of New Hampshire lawyers. What do local members of the state bar expect from a MacDonald court?

Josh Rogers: Well, as you might expect, it kind of depends on who you ask. But while MacDonald's politics, real and perceived, were a lightning rod during the confirmation process, MacDonald is pretty popular within the New Hampshire bar. And he's generally seen as a collegial person, which is something to remember when it comes to the New Hampshire Supreme Court: that rulings tend to be by consensus. Unanimous rulings are the norm. Dissents are quite rare. And few watchers of the court I've spoken with expect that to change once Gordon MacDonald starts hearing cases.

Some lawyers do expect MacDonald, the administrator, to have a pretty immediate effect based on his work raising money for legal services for the indigent. MacDonald does seem sensitive to issues of court access. Some lawyers I've spoken with hope he takes steps to boost access to services, maybe try to bump up resources in clerks offices, for instance, to make it easier for citizens who don't have lawyers to navigate the system.

One thing that does seem pretty certain is that MacDonald's relationship with Gov. Sununu -- they've worked closely for years now -- could help the court when it comes to expediting the filling of court vacancies, for instance, and when it comes to court budgets. That's something to watch. But, you know, regardless of what happens once MacDonald joins the court, the Supreme Court is going to have Gov. Sununu's imprint on it for some time. When McDonald takes a seat on the bench as chief, the governor will have now appointed three of the five justices. And that's pretty rare for any New Hampshire governor.