Testimony on NH Supreme Court Chief Justice Nominee
Gordon MacDonald
Executive Council, January 21, 2021

My name is Zandra Rice Hawkins and I am the Executive Director of Granite State Progress, an advocacy organization working on issues of immediate state and local concern. I am here today to in opposition to the nomination of Gordon MacDonald for Chief Justice.

19 months ago, our organization testified during the first hearing on this nominee and raised concerns and questions that have yet to be answered in the last year and a half. Many of these concerns centered around Mr. MacDonald’s previous work in partisan positions and serving as a Board member and officer for the conservative Josiah Bartlett Center during the time in which the Bartlett Center advocated in opposition of Affordable Care Act implementation, Medicaid expansion, RGGI and renewable energy projects, and in support of school privatization, right to work, and significantly changing public pensions.

Given Mr. MacDonald’s past role here, it is important for the public to know his position on high profile issues that may very well come before the Supreme Court in the near future.

For example, what is Mr. MacDonald’s legal opinion on the intersection of government and health care? As Attorney General, Mr. MacDonald pursued a burdensome work requirement for low-income Granite Staters enrolled in Medicaid expansion, even as a similar policy in other states was struck down in the courts, and even after New Hampshire’s own law was invalidated by a federal judge. Mr. MacDonald continued to press forward to overturn precedent as recently as last August, during the middle of a public health and economic crisis when many Granite Staters were out of work and relying on Medicaid expansion for critical health coverage.

It is possible Mr. MacDonald felt obligated to waste state resources in pursuing this matter. But it does not go unnoticed that MacDonald served in the leadership of an organization that had strong opinions on this issue, and that he used the resources of his office to pursue it even after a federal judge struck it down.

In contrast, 17 other states joined together in April 2018 to defend the Affordable Care Act from attempts to undermine it in the courts. It would be nearly two years later before New Hampshire would join, after Governor Chris Sununu reportedly ‘directed” the AG’s office to join. What was Mr. MacDonald’s decision-making process that led him to delay in protecting Granite Staters’ health care, and were politics involved in the decision to join belatedly?

Mr. MacDonald testified that a Supreme Court judge must uphold the law regardless of his personal views, and that a judge needs to be fair and impartial. Since Mr. MacDonald has zero experience as a judge, and we have no previous court decisions or approaches upon which to draw conclusions about his suitability for Chief Justice, we must look at what we do know about Mr. MacDonald.

As Attorney General, MacDonald Reversed Office’s Position on SB 193,

School Voucher Bill Despite Clear Unconstitutionality

One clear example is Mr. MacDonald’s decision as Attorney General to reverse the department’s position on SB 193, a bill designed to divert public taxpayer dollars to private and religious schools in the form of school vouchers, despite its clear unconstitutionality.

Twice in April 2017 – immediately before MacDonald took over as Attorney General – the AG’s Office testified that “there are two provisions in the New Hampshire Constitution … that say that tax dollars cannot be used in New Hampshire to support schools of sectarian organizations.”

However, in December 2017, the AG’s Office sent a two-sentence email to the Speaker of the House opining that SB193 was constitutional – and referenced a discussion with Attorney General MacDonald.

The NH ACLU and several editorial boards questioned that judgement, citing that SB193 directly violated the NH Constitution and NH Supreme Court precedent restricting the use of public funds for religious schools. The criticism also noted that the email to the House Speaker was done outside of the normal avenue for legal opinions from the Attorney General’s office and was a reversal from the position the Attorney General’s office took in the time period before MacDonald took office.  (InDepthNH, 1.2.18; Valley News, 1.16.18, Concord Monitor, 1.4.18)

The Concord Monitor editorial stated, (quote) “It will be up to the state Supreme Court to decide which opinion is correct should the bill become law. State efforts to direct public funds to private schools, including religious schools, are being promoted nationally by school choice advocacy organizations.” (end quote)

Gordon MacDonald, of course, had served in leadership of just such an organization. It’s worth noting that a lawsuit is currently underway in New Hampshire on this very topic. If confirmed, does Mr. MacDonald plan to recuse himself from this case, and others like it that he has worked on?

As Attorney General, Mr. MacDonald did not recuse himself. Instead, he provided a contradictory legal opinion that overturned his office’s position, generating a new position in line with a special interest group on which he had served.

MacDonald Has Questionable Record on Reproductive Rights

Unfortunately, there are not isolated examples.

Mr. MacDonald stated that his personal opinions on reproductive rights – which he opposes – have no bearing on his ability to serve as a NH Supreme Court judge. But his track record as Attorney General shows that he does pick and choose which issues he advocates around, and that those positions tend to fall in line with his own past political involvement and beliefs.

Mr. MacDonald did not join the federal lawsuit challenging the constitutionality of the Trump Administration’s “domestic gag rule” altering the Title X family planning program. 21 other State Attorney Generals worked together to protect women’s health coverage, but not Gordon MacDonald.

It is not unreasonable to ask whether this track record is part of why Governor Chris Sununu was willing to hold this seat open for nearly two years in order to confirm Mr. MacDonald, or why Mr. MacDonald himself did not proactively withdraw his nomination in order to ensure our state’s highest court could run smoothly and fully seated.

But our last critique today may be our most important given what has happened in our country over the last week.

The violent insurrection that played out in Washington DC last week did not come out of the blue, and our forefathers put in safeguards to try to prevent us from getting to this dangerous place. But as Attorney General, Gordon MacDonald failed in his duty to follow the Constitution and enforce state law.

For months, MacDonald looked the other way as heavily armed militias – domestic terrorists – agitating for a second civil war openly recruited and organized in front of our State House. These paramilitary members posted disturbing memes that discussed making command detonators and conducting raids on public leaders, and some of its members were arrested in upstate New York last summer with AR-15’s, thousands of rounds of ammunition, and a tactical militia manual.

The New Hampshire Constitution forbids armed militias outside of state authority, stating: “[i]n all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power.” (N.H. Const. pt. 1, art. XXVI). New Hampshire law also prohibits private military units, making it illegal for groups of people to organize as private militias without permission from the state. (N.H. Rev. Stat. Ann. § 111:15)

Gordon MacDonald took no action here, nor when elected members of the NH State House seditiously declared both our elections and the State of New Hampshire terminated; nor did he use the power of his office to push back on the seditious Texas lawsuit seeking to overturn American election results, even as other AG’s rose to the defense of our democracy.

Why didn’t Mr. MacDonald vigorously uphold our Constitution and state laws? As Attorney General, he was in a position to affect real change here. The fact that he didn’t should concern all of us.

In Closing: We Oppose

In closing, we oppose the nomination of Gordon MacDonald. Our organization is willing to provide documentation for anything cited here today, and we urge the Executive Council to take the time to look into each of these issues before moving forward. Thank you.