MacDonald nomination echoes that of Earl Warren, a chief justice who responded to the times

In late-August of 2017, an 8-year-old mixed-race boy had a rope pulled tight around his neck and was strung up in a tree in Claremont, a blue-collar town just over two hours from Boston. 

Not only did New Hampshire Attorney General Gordon MacDonald, now Chief Justice nominee, spring into action with a swift investigation, he created something no Attorney General of New Hampshire had thought to do before him: empower a free-standing Civil Rights Unit to combat such acts with the full force of the law. 

The first case championed by Civil Rights Chief Elizabeth Lahey, a fierce and bright prosecutor, concerns assault and discrimination against a Muslim couple at the hands of an inn keeper who is alleged to have said, among other things when turning them away, that Muslims kill children.  Sadly, these two episodes happened in 21st Century New Hampshire in the last two years and such will now be reckoned with, thanks to MacDonald’s reforms.

Chief Justice Earl Warren, too, was a former Republican operative and party chair and then an Attorney General and Governor of California.  Also a talented man, he was made Chief Justice of the United States having never been a judge a day in his life.  More locally, the same holds for former Chief Justice John Broderick and Chief Judge of the First Circuit, Jeffrey Howard.  Both went on the bench as attorneys with zero judicial experience and rose to lead their respective benches, such were there talents.  Respected former and current justices Jim Duggan and Jim Bassett also rose to the state’s highest court without being trial judges.

Warren, like MacDonald, mirrored and was informed by his times and is now remembered for the landmark civil rights cases of the 1950s and 1960s.  Like Warren, will MacDonald be a man who moves in synch with where we are going on the long road bending towards justice?  His tenure as Attorney General gives some clues to the kind of leader of the Judicial Branch he would be – a leader that doesn’t quite fit into a “conservative” box – but more of a good management, responsive to problems, practical liberal democratic tradition of fairness and justice – no matter one’s rank or station, color, political views, or sexual orientation. 

MacDonald, without fanfare and in his quiet way, convened leaders of the LGBTQ community, New Americans, and people of color to figure out how to fairly divide significant federal funds that were earmarked to fight the scourge of sexual abuse and domestic violence.  He could have exerted patronage, but rather sought wisdom of underserved and at-risk communities to divvy it up fairly.

MacDonald has brought suit against businesses alleged to be poisoning the Granite State’s waters with PFAS, a cause that could not have been easy to advance in a pro-business executive branch.  MacDonald also professionalized the appellate work of the state by recruiting Dan Will from a lucrative commercial litigation practice to serve as the first Solicitor General of New Hampshire. 

Those who are stung by Southern abortion bans and are leery of one who many years ago worked as a young man for an anti-abortion U.S. Senator would do well to remember personal views are personal views but the law is the law.  MacDonald would assuredly follow the maxim of stare decisis – let the decision stand, as he made abundantly clear at his confirmation hearing.  Even if Roe v. Wade would come under attack at the national level, there are three safeguards in the Granite State – a pro-choice legislature, a pro-choice Governor, and the Live Free or Die New Hampshire Constitution that is more protective of the right to privacy than the national one. 

As one of the greatest champions of legal aid the state has ever seen, just imagine what kind of focus MacDonald would have on revitalizing the Access to Justice Commission, or ensuring drug courts run smoothly, or adequate monies are budgeted to serve all comers, regardless of means. 

Finally, MacDonald is a lawyer’s lawyer; he literally wrote the book on litigation in our jurisdiction – the three volume New Hampshire Practice treatise on court procedure. There is a reason MacDonald has so-far garnered the public support of more than 120 prominent attorneys and retired judges, including the current and two former Chief Justices, associate justices, four of our federal court judges, both President Barack Obama’s United States Attorneys, Attorney Generals appointed by two Democratic Governors, and scores of Democratic and Republican attorneys who practice daily law, not blind partisanship.

The Executive Council should confirm Gordon MacDonald’s nomination as Chief Justice – he has all the hallmarks of becoming a great one.     

Jay Surdukowski is a trial lawyer at Sulloway & Hollis who also advises clients on political law.