July 2, 2019

An open letter to Gov. Sununu

Dear Gov. Sununu,

As chairman of your Judicial Selection Commission since 2017, I want to be sure we are in tune with your current wishes for the scope of our interviews of judicial branch applicants.

Our mission has been to look for judicial candidates with the intelligence, trial experience and temperament to judge our fellow citizens. Depending on what level of courts we are reviewing, we look to an applicant’s type of practice, their involvement in the community, and their ability to reason and write well. We call friends and opponents of the candidates and review multiple writing samples they submit.

Because I was a Superior Court judge and an associate justice on the Supreme Court for over a decade I know what the respective jobs entail. When I was confirmed by the Executive Council just one year after the 1973 U.S. Supreme Court decision in Roe v. Wade (and two years later to the N.H. Supreme Court) no one asked me how I would rule in abortion cases. In fact, I know of no judicial nominee, prior to last week, during my half century of practice ever being put to a litmus test on that issue, let alone on voting rights, guns or any other political issue of the day.

The Exeter Council has now apparently shifted to litmus tests rather than accepting that it is the role of a judge to put their own views aside when making decisions under the law on a given set of facts. Your Selection Commission has never asked a single abortion related question of any candidate including Gordon MacDonald or of Martin Honigberg, who represented Planned Parenthood.

One councilor last week said that Attorney General MacDonald was a member of a party that has a bad record on health care, voting rights, gerrymandering, campaign finance, gun safety and abortion, so, therefore, he should not be confirmed. But even in Washington, D.C. no one attacked Elena Kagan or Ruth Bader Ginsburg for being Democrats and thus should not be approved as justices by Republican senators.

Your commission has never asked a candidate what their party affiliation is. If party affiliation is now a disqualifier we are in a very sad state of affairs for the future of the New Hampshire judiciary.

If the Executive Council now wants answers in advance of any ruling on politically charged potential cases, you may want us to revise the questionnaire that we have kept virtually the same as the one used by the commissions for Govs. Lynch and Hassan.

I was not in attendance at the hearings last week so we need to be told what the specific litmus questions the council majority wants to have answered are.

On the other hand, if you want us to keep going on as we have in the past, without any litmus tests, please let us know.


Hon. Charles G. Douglas, III

Chair, N.H. Judicial Selection Commission