New Hampshire Republicans Living Up To Sobriquet “Stupid Party”

At the beginning of 2013, in response to the disappointing election results in 2012, then Arkansas Governor Bobby Jindal called on the Republican Party to “stop being the stupid party”.

Apparently some Republicans in New Hampshire did not get the call:

Now DiStaso is a hack who carries water for the Democrats, but why did the Republicans give him the opportunity to help the Democrats embarrass the new GOP Governor, the first GOP Governor in New Hampshire since 2003?  From DiStaso’s “article”:

“There seems to be a lack of understanding in the corner office about what the process is to create rules,” state Sen. John Reagan, R-Deerfield, who chairs JLCAR, said in an interview. “It seems that (Sununu) was trying to do what everyone promises to do in Washington, stop passing laws that proliferate bureaucratic rules.”

“But we don’t allow that here,” Reagan said, explaining that no rule or regulation can “exceed the authority of the legislation.”

Why the hell would a Republican State Senator call the new GOP Governor, the first GOP Governor in New Hampshire since 2003 ignorant?  This merits the sobriquet “stupid party.”

But the blame does not lie solely with John Reagan.  The WMUR “article” links to a letter the JLCAR committee sent to Sununu.  From the letter:

This letter was endorsed by a motion of the full Joint Legislative Committee on Administrative Rules, and passed without opposition.

In other words, every Republican on the committee, which is majority Republican, signed on to the effort to embarrass the new Governor, the first GOP Governor in New Hampshire since 2003.  Stupid party.

Could they really have been so naive as to not understand the Democrats would immediately take the letter to the press to embarrass the new Governor, the first GOP Governor in New Hampshire since 2003?

It is entirely proper for the Governor, as the State’s chief executive officer, to provide direction to the agencies regarding rule-making consistent with the law, which is exactly what Sununu did here:

For a regulation to survive, Sununu wrote, department heads should be able to show that there is a clear need for it; that it is best addressed by the agency; that its cost does not exceed its benefit and that its effectiveness can be measured.

When that review is complete, Sununu says agencies should act immediately to repeal of suspend adoption of all current or proposed regulation not mandated by law or essential to public health safety or welfare.

In other words, Sununu did not call upon agencies to place a freeze on regulations mandated by law.  Rather, he directed agencies how to exercise their discretion when it comes to rule-making.

Why the Republicans on JCLAR would have a problem with the State’s chief executive officer directing the agencies he is constitutionally charged with overseeing not to promulgate rules that are not needed and whose costs exceed their benefits is bewildering to say the least.  Especially when JCLAR does not have such authority, but rather reviews simply for whether the rule is within the ambit of the legislation which is an extremely broad and permissive review.  Stupid party.

The lack of any pushback from Sununu is troubling.  Perhaps he is worried about what happened to Governor Benson the last GOP Governor before Sununu, who was a one-term Governor whose tenure was marred by squabbling with the GOP legislature.  Nevertheless the lack of pushback makes Sununu look weak.

Sununu’s Plan to Replace Obamacare Just More of the Same

From the Associated Press:

CONCORD, N.H. (AP) – New Hampshire Gov. Chris Sununu is asking Congress to give states as much flexibility as possible to design their own health care systems as part of the federal effort to repeal and replace the Affordable Care Act.

“We urge Congress to untie the hands of the States,” the Republican governor wrote in a Wednesday letter to U.S. Senate Majority Leader Mitch McConnell. “Let us have the flexibility to design a New Hampshire system for New Hampshire citizens.”

I attempted to locate the letter, but it is nowhere to be found on Sununu’s official government website.  (So much for New Hampshire having a transparent government).

So based on what the Associated Press has reported, I have to say that Sununu’s plan to replace Obamacare is just more of the same.

In other words, Sununu’s plan, again based on the Associated Press reporting, is to replace Obamacare with Sununucare.  More particularly “design[ing] a New Hampshire system for New Hampshire citizens” means shifting powers from the federal bureaucrats and regulators to State bureaucrats and regulators.  So instead of a myriad of byzantine federal rules and regulations we would have a myriad of byzantine State rules and regulations.

But what about the “New Hampshire Advantage”?  It’s a myth with healthcare as with so much else.  The New Hampshire healthcare market was a disaster even before Obamacare because of heavy and ubiquitous State regulation.  From a 2011 Union Leader editorial:

… Senate Bill 711, which became law in 1994. It introduced “community rating” to the state’s health insurance market. It forbade insurers in the small-group market (businesses with fewer than 100 employees) from denying coverage based on pre-existing conditions and certain demographic factors. And they were allowed to charge the old only three times what they charged the young.

That law drove 21 insurers out of the state. New Hampshire went from having 26 health insurers in 1994 to only five just eight years later. A study by the Rhode Island legislature, conducted 12 years after SB 711 passed, concluded that the bill was what drove those insurers out of state, and that it also raised the cost of insurance for younger, healthier residents while lowering it for older and sicker ones. 

In addition, there were a plethora of mandates in effect in New Hampshire prior to Obamacare.  For example, all health insurance policies had to cover bariatric surgery.  These mandates, of course, raise the cost of insurance and force consumers to buy insurance that they do not want and/or do not need.

I’m sure the response of the Sununu administration and the GOP establishment to my trip down memory lane would be along the lines of things will be different because the GOP is in charge now.  Well, the GOP also controlled all branches of government in 1994 when SB 711 was passed.  And things haven’t gotten any better – despite GOP control of the legislature the past two sessions, the legislature passed Obamacare Medicaid Expansion and then renewed it.

It’s a safe bet that the “New Hampshire system for New Hampshire citizens,” will be a system designed by lobbyists and insiders for the benefit of their clients and donors.

And even if Sununu were somehow able to prevent the lobbyists and insiders from designing the “New Hampshire system,” he is not going to be Governor forever.  At some point, power will change hands.

The solution is not to replace Obamacare with Sununucare.  Empowering healthcare consumers is the solution and one of the ways to do that is to have a true national health care market by allowing consumers to purchase health care across State lines.  States should be forbidden from issuing mandates and regulations and federal mandates and regulations should be limited to those that are broadly supported and will not unreasonably raise the cost of health insurance.

A true national healthcare market will force insurance companies to compete with each other, which will result in better choices for consumers.  In other words, just as school-choice, which Sununu says he supports, will improve the quality of education by forcing schools to compete for students, health-insurance-choice will improve the quality of health insurance.

A Modest Step to Begin Draining the Swamp in Concord

I previously posted some thoughts on reforming legislative hearings – New Hampshire Legislative Hearings are Largely a Waste of Time.

As an interim step, I propose the following reform: that no lobbyist be allowed to testify at a legislative hearing until every member of the public has already testified.

The reforms I proposed in New Hampshire Legislative Hearings are Largely a Waste of Time would make this reform unnecessary.  But until those or similar reforms are made, the privileged treatment of lobbyists at legislative hearings should be turned on its head.

No More Education Funding Amendments

One thing Republicans in the New Hampshire legislature should not do is pass a constitutional amendment addressing the State Supreme Court’s Claremont decisions.

One reason is that such an amendment should be unnecessary.  As I demonstrated in New Hampshire’s Claremont Case and the Separation of Powers and in The Original Understanding of the New Hampshire Constitution’s Education Clause the  Claremont decisions are not constitutionally-based but rather involve the justices on the Supreme Court elevating their policy preferences into constitutional law.

Governor Sununu will get to make at least two nominations to the Supreme Court in is first term.  From NHPR:

Chris Sununu will be in the rare position of potentially nominating not just one but two new justices to the state’s highest court. For comparison: Sununu’s predecessor, now-Sen. Maggie Hassan, didn’t get to nominate any.

The justices, unlike a lot of other state-level positions, aren’t subject to fixed-length terms — instead, once nominated, they get to serve until they’re 70 years old.

Two of five justices are on track to retire during Sununu’s term: Associate Justice Carol Ann Conboy (July 2017) and Chief Justice Linda S. Dalainis (October 2018).

If he is reelected to a second term, which has not happened only once in the last 90 years, he will get to name a replacement for Justice Robert Lynn.  In other words, within three years a majority of the Supreme Court will be Sununu picks.

Thus, in approximately the same amount of time as it would take to get a constitutional amendment passed, Sununu can achieve the same result by appointing Supreme Court justices with the proper judicial philosophy.

It is preferable that Claremont be redressed by appointing judges for a number of reasons.

First, redress by amendment, when redress can be made through appointment, sends the pernicious message that judges can rewrite the constitution unless a super-majority of the legislature and a super-majority of the voters oppose the rewrite.

Second, we don’t know what final form an amendment would take, but given the Republican-In-Name-Only composition of legislative leadership and the need for a super-majority it is very foreseeable that an amendment would write portions of the Claremont decision into the constitution in order to garner Democrat support.  While Democrats have opposed Claremont amendments in the past they may see an amendment as a way to save some of the Claremont decisions, given the three looming vacancies, and play ball with the RINOs who want to preserve aspects of the Claremont decisions.

Third, redress through appointment will force Governor Sununu to be rigorous in selecting nominees with the proper judicial philosophy.

Democrats Hoist By Their Own Petard on Right to Work

Earlier this week, the New Hampshire House held a hearing on Right-to-Work, which is a term describing a law that guarantees that an employee cannot be compelled, as a condition of employment, to join or to pay dues to a union.  From the Concord Monitor:

Hundreds of union members turned up to the State House on Tuesday to oppose a controversial right-to-work bill, loudly cheering fellow workers’ remarks and at times jeering those who advocated the bill’s passage.

(For my thoughts on the efficacy of New Hampshire legislative hearings go here.)

There are two genre of arguments over Right-to-Work.  One can be called practical.  Proponents of Right-to-Work argue that it helps workers as well as businesses, while opponents argue that it hurts workers:

Both sides presented competing evidence and disagreed over the proposal on wages. Proponents said right-to-work states experience higher wages, while union members said its implementation in New Hampshire would drive down pay.

Because there is competing evidence, in the form of competing analysis and studies by different think-tanks, the arguments over whether Right-to-Work results in higher or lower wages probably is a wash.

The other type of argument is ideological:  the freedom versus free-rider arguments:

Republican bill sponsors, some of whom are union members, argued that workers shouldn’t have to pay dues to get a job.

But union leaders and members countered that workers should pay for the benefits gained through collective bargaining.

But there is actually a freedom argument to be made against Right-to-Work.  The argument is that the employer should be free to choose whether to contract with a union or not.  The problem with this argument is that it is illegal for the employer to choose not to contract with a union.

Stated slightly differently, the argument against Right-to-Work being an infringement against employer-freedom is that the choice is not between Right-to-Work and an ideal world where employers can choose whether to contract with a union or not, but between Right-to-Work and the real world we live in, in which government forces employers to contract with unions.

Some libertarians oppose Right-to-Work as more government regulation, but would remove the existing government regulation that favors unions.  From the Mises Institute:

… incremental efforts need to go in the right direction. While right-to-work seems like a step in the right direction because it improves labor conditions and more closely simulates the free market than does the status quo, this is an illusion. In fact, these laws are steps in the wrong direction by favoring more regulation over less, more laws over fewer. They are a tacit concession that government mandates can solve our problems, and that employers cannot be trusted to run their enterprises without government intervention.

As free-market advocates, on the other hand, we have an obligation to uphold the ideal of no government intervention in markets, and to always support fewer interventions whenever we have the opportunity. Using government intervention as a means to reduce government intervention is methodologically unsound, and logically contradictory.

Democrats who oppose Right-to-Work cannot make the same argument because they want to leave in place government regulations requiring employers to contract with unions.

Democrats are in the minority of both branches of the legislature and need to peel off Republican votes to defeat Right-to-Work.  In the House, Speaker Jasper’s support of Right-to-Work presumably will make it more difficult to peel off the RINO (Republicans-In-Name-Only) vote.  That leaves the more conservative GOP representatives, some of whom presumably would be receptive to the libertarian argument against Right-to-Work.  Except the Democrats cannot logically make that argument because they would be hoist by their own petard.

New Hampshire Legislative Hearings Are Largely a Waste of Time

(UPDATED on January 8, 2017.)

Both the New Hampshire Legislature and the United States Congress hold “public hearings” on bills.

The custom and practice in New Hampshire, however, is to allow anyone who wishes to testify to testify.  This encourages the opposing sides of a bill to pack the hearing with favorable witnesses in an attempt to show a groundswell of public support of or public opposition to the bill, which generates redundant testimony.  Additionally, because there is no separation of the wheat from the chaff the committees must endure low quality, and in many instances downright unhelpful, testimony.

A public hearing in Congress, in contrast, simply means that the hearing is not conducted behind closed doors.  It is open to the public and the press.

New Hampshire legislative hearings should be reformed along the lines of Congressional hearings. Here are some suggestions:

Committees should accept written testimony from anyone up to three days before a scheduled hearing.

Hearings should be scheduled for a fixed amount of time.  The length would be decided by the committee chairman.

The majority and the minority should get to call a fixed number of witnesses based on the composition of the committee.  In other words, if the chairman decides that ten witnesses are appropriate and if there are six Republicans and four Democrats on the committee, the Republicans would get to call six witnesses and the Democrats would get to call four witnesses.

Each member of the  committee should be allowed to question a witness for the same amount of time.  Thus, the time of the hearing would be divided proportionally between the majority and minority.

The hearings should be open to the public and the press.

These reforms would turn New Hampshire legislative hearings from day-long (and in some cases multi-day-long) marathons into efficient and efficacious information-gathering tools.

UPDATE: January 8, 2017.  Since posting this I learned that Representative J.R. Hoell is sponsoring a bill that would prevent public employees from testifying at legislative hearings on “company time” with certain exceptions.  While not within the scope of this post, it is a reform that should be passed by the Legislature and signed by the Governor.

98-F:2 Public Employee Testimony.

I. No public employee, as defined in RSA 273-A:1, IX, may testify before a hearing of a general court committee during working hours unless:

(a) Specifically requested by the chairperson of the committee and a copy of such request is provided in writing to the clerk of the committee.

(b) Explicitly authorized by his or her employer to represent such employer with respect to the matter on which testimony is being received and such documentation is provided in writing to the clerk of the committee.

(c) The public employee has chosen to use personal or vacation time to testify on a matter before the legislature and has provided written evidence to the clerk of the committee of the time being used as personal time.

II. Nothing in this section shall be construed to prohibit a public employee from testifying on any matter not related to his or her employment.

Reforming New Hampshire’s Business Taxes

While New Hampshire has a low overall tax burden relative to other States, its business taxes are among the highest.  The Tax Foundation, for example, ranks New Hampshire seventh overall in terms of business tax climate, but just 46th when only business taxes are considered.  New Hampshire’s seventh-place ranking is the result of the absence of a general individual income tax and a general sales tax.

There are two business taxes in New Hampshire.  The business profits tax, as the name suggests, is a tax on profits.  Businesses with $50,000 or less in profit are exempt.  The business enterprise tax is a tax on the compensation, interest and dividends paid out by a business.  Business that pay $100,000 or less in compensation, interest and dividends are exempt.

The business enterprise tax is treated as a credit against the business profits tax.  In other words, if a business has a business profit tax of $10,000 and a business enterprise tax of $10,000, it pays $10,000 in taxes.

The reason New Hampshire has two business taxes is that: (1) some businesses -e.g. law firms- show no profit by paying all of their profit as salary and (2) these businesses escape taxation because New Hampshire does not tax earned income.  In other words, the business enterprise tax is essentially an income tax that is collected from profitable businesses that report no profit.

New Hampshire’s high business tax rates led the Legislature to include rate reductions in the 2015 budget.  The business profits tax was cut from 8.5 percent to 8.2 percent in 2016, and is scheduled to go down to 7.9 percent at the start of 2018, which would make it a tenth of a percent lower than the corporate tax rate in Massachusetts.  The business enterprise tax was cut from .75 percent to .72 percent in 2016, and is scheduled to go down to 0.675 percent at the beginning of 2018.

State Senator Jeb Bradley has proposed a  bill that reduces the business profits rate to 7.7 percent on July 1, 2019, and then eventually down to 7.5 percent on July 1, 2021.

But rather than just tinkering with the rates,  a Republican-controlled Legislature and a Republican Governor presents the opportunity for more comprehensive reform of business taxes.

More specifically, what I have in mind is replacing the business profits tax and the business enterprise tax with a single tax.  The revenues of the business, less the cost of the materials needed to make whatever tangible product the business produces  –what accountants call the cost-of-goods-sold–  would be taxed.

Replacing the business profits tax and the business enterprise tax with a net revenues tax as described above would simplify the tax code for businesses.

It would eliminate the cost and effort of tax avoidance and allow businesses to focus on doing what makes business, not tax-accounting, sense.

It would create a level playing field by eliminating the special deductions and credits that favor some business over others.

I would set the rate of the net revenue tax to make it revenue neutral – that is, it should be the rate that collects the same amount of taxes that is currently collected under the business profits tax and business enterprise tax.  But by making the net revenue tax applicable to certain not-for-profits (I would exempt religious schools) the tax base could be expanded and allow the elimination or reduction of taxes such as the Interest and Dividend tax.

If all the Republican Governor and Republican-controlled Legislature do is further tinker with tax rates, they will have squandered an opportunity for fundamental reform.

Reforming New Hampshire’s Budget Process

With Republican majorities in both branches of the Legislature and a Republican Governor, the time is right to reform New Hampshire’s budget process.

As I discussed in a prior post, New Hampshire follows a three-part budget process:

… The first part is the myriad government agencies putting together essentially a wish list of spending for the next budget, which in this case covers July, 2017 through June, 2019 (the Fiscal Years 2017 and 2018).

Next, the Governor turns this spending wish list into a recommended budget and presents it to the Legislature by February 15th.

The Legislature then takes this information and writes the legislation that eventually becomes the State’s budget.

The first part should be eliminated.

Agencies act in their own self-interest when crafting budgets.  They seek to preserve existing programs and positions, and to expand those programs and positions.  Agencies do not consider whether the cost or effectiveness of existing programs justifies continuing those programs.  Nor do they consider consolidating or eliminating positions.  Rather, when an agency budgets the assumption is that there are no inefficiencies, waste or unneeded services.  It’s all about defending their turf and expanding their turf.

Agencies also assume their budget requests will be cut, so they request more than they would really need.  Indeed the current process has an aspect of you-scratch-my-back-and-I’ll-scratch-yours to it.  Agencies inflate their spending needs, knowing their recommendations will be “cut”.  The Governor then “cuts” their budgets, which usually means that the Governor simply reduces the increase in spending.  It’s a “win-win”.  The Governor gets to claim he or she is being a fiscal conservative, while the agencies get more money to spend.

Eliminating the agency budgets does not mean that the Governor cannot get and use inputs from the agencies.  What it does mean is that these inputs will be much more focused and useful.  For example, the Governor directing a particular agency to prepare a budget based on the same or reduced spending makes budgeting about improving the delivery of a government service, not defending or expanding the agency’s turf.

The budget process as currently structured makes budgeting about how much to increase spending.  Eliminating the agency budgets allows budgeting to be more about identifying and eliminating inefficacious, redundant and unnecessary programs, improving needed programs and ending wasteful spending.


Shawn Jasper Makes a Farce Out of Right-to-Work

I do not think that right-to-work is the paramount policy issue facing New Hampshire at this time.  (Right-to-work describes a law law that guarantees that an employee cannot be compelled, as a condition of employment, to join or to pay dues to a union.)

But if Governor-elect Chris Sununu and the GOP legislative leadership are going to make right-to-work their top legislative priority, they should at least do it right.

From Sunday’s Keene Sentinel:

Jasper said he doubted there was enough political support to impose the regulation on public unions as well as private ones, a decision Sununu has said is still up for debate.

But he said he and other legislators would be in support of a right-to-work measure targeted at private unions, which represented 3.8 percent of all New Hampshire workers in 2015, according to the Economic and Labor Market Information Bureau.

If not for business reasons, Jasper says the case for the law comes down to worker freedoms.

“People shouldn’t be forced to belong to an organization to have a job,” Jasper said. “I believe that that’s the motivation.”

Right-to-work should not apply only to private sector unions as Jasper would have it.  To the extent right-to-work is to be the law in New Hampshire it should also apply to pubic sector unions.

The proponents of right-to-work make multiple arguments for right-to-work.  One is that right-to-work States have better economic growth (opportunity) and higher wages (standard of living) than States are not right- than to-work.  That argument doesn’t concern us here because the issue raised by Jasper is the scope of right-to-work.

The argument that does concern us is that employees should not be forced to associate with a union against his or her will, or in Jasper’s own words: “People shouldn’t be forced to belong to an organization to have a job.”

More specifically, forced membership in a union raises this concern because unions are heavily involved in the political process.  The argument from the proponents of right-to-work is that an employee, as a condition of employment, shouldn’t be forced to support or even associate with a political position that he or she opposes.

In order to avoid this problem, unions are supposed to apportion their dues between their negotiating activities and their political activities.

Leaving aside the question whether it is possible for a private sector union to do so, it’s clearly impossible for a public sector union because every aspect of a public sector union’s negotiating activities has a political ramification.

For example, a contract that calls for increasing the number of public school teachers or increasing the salary of existing teachers or increasing the number of paid holidays for teachers means higher taxes or cuts in spending elsewhere.  Such contracts represent the political position that increased spending on public education is more important than low taxes or more important than spending on school choice programs.  Requiring teachers to join the union negotiating such a contract forces the teachers to implicitly associate with and explicitly support that political position.

Essentially, Japser’s position is: ” “People shouldn’t be forced to belong to an organization to have a job [unless their employer is politically powerful, in which case my political skin is more important].”

What Kind of Governor?

Soon New Hampshire will have its first Republican Governor since Craig Benson in 2003-2004.  Benson was a one-and-done Governor (that is, he was not reelected), and was the first GOP Governor of New Hampshire since Steve Merrill, who served two terms between 1993 and 1996.  Needless to say, having held the corner office only two out the last 20 years, the GOP has a lot riding on Chris Sununu.

So what kind of Governor will Sununu be?  Perhaps a better way to frame the question is whether Sununu will be a status quo Governor or a transformational Governor.

The first indication we will get of the kind of Governor that Sununu will be is whether he recommends a status quo budget or a transformational budget.  To understand what I mean by that, it is necessary to briefly review New Hampshire’s budget process.

A three-part budget process is followed in New Hampshire.  The first part is the myriad government agencies putting together essentially a wish list of spending for the next budget, which in this case covers July, 2017 through June, 2019 (the Fiscal Years 2017 and 2018).

Next, the Governor turns this spending wish list into a recommended budget and presents it to the Legislature by February 15th.

The Legislature then takes this information and writes the legislation that eventually becomes the State’s budget.

The budget that the Governor recommends, and that the Legislature writes, must be balanced.  That is, spending and anticipated tax revenues must be equal.

A status quo budget is one that makes no radical changes to how State government is funded or how it is structured or how much it spends.  Rather it makes minor tweaks, such as the token cut in the business profits tax proposed by Jeb Bradley or a modest increase in funding for charter schools, makes a conservative estimate of how much tax revenues will increase over the next two fiscal years and then pares back the agencies’ spending wish list to that point.  In other words, a status quo budget is pretty much business as usual.

A transformational budget is a budget that makes major reforms to New Hampshire’s tax scheme, that makes meaningful structural changes to State government such as making funding for school choice and charter schools the priority over crafting an arcane “education funding formula” designed to please unelected political judges and education-bureaucrats rather than meet the needs of 21st century students, and that doesn’t assume that State government cannot be shrunk.

Additionally,  Sununu will have to decide between being a status quo Governor or a transformational Governor when filling vacancies in government agencies and the judiciary.  As I noted in a prior post:

But additionally Sununu is positioned to make a significant mark on New Hampshire as he has a GOP controlled legislature and Executive Council to work with and a number of significant positions to fill: two Supreme Court vacancies, the Attorney General and the head of the Department of Environmental Services. With the right picks and the right legislative priorities, Sununu could be a transformational Governor.

A status quo appointment with respect to the Attorney General is someone who passes muster with the State’s legal establishment, which is comprised of Democrats and liberal Republicans, who believe that the Attorney General’s office is a Super-Legislature that can and should exercise a veto over laws they don’t like by refusing to defend these laws.  A recent example is the Attorney General refusing to defend an education funding law:

Facing a school funding lawsuit from the city of Dover, the attorney general’s office is not defending the law that caps how much state money growing school districts can receive each year.

A transformational Attorney General is someone who respects the separation of powers and will not refuse to defend legislation for political reasons, and who will aggressively work to prevent and prosecute voter fraud.

A status quo appointment with respect to judicial appointments is, again, an individual who passes muster with the State’s legal establishment.  More specifically, a status quo appointment is a judge who decides cases by starting with the outcome that the political Left would reach, and then finding a way to reason his or her way to the result.  A paradigmatic example is former Judge John Lewis of the Superior Court:

Judge Lewis’ decision in the Duncan case is a paradigmatic example of judicial activism, or political judging. Essentially, what political judging involves is reasoning backwards from a political result that the judge wants to achieve. Here, the political result was to prevent application of the education tax credit law, because those credits are used to defray tuition to private schools, and the Left opposes making it easier for low and middle-class children to attend private schools.

How do we know it was political judging? Well, from reading the decision.

Lewis began with the “legislative history,” of the education tax credit law, which is exactly the opposite of how a statute is supposed to be interpreted under New Hampshire Supreme Court precedent ( “Unless we find statutory language to be ambiguous, we will not examine legislative history.” Clare v. Town of Hudson, 160 N.H. 378, 384-85 (2010).) What’s even more unorthodox is that Lewis used his “analysis” of the legislative history to emphasize the minority report, which of course was opposed to the law.

A transformational appointment would be someone along the lines of the late Antonin Scalia, a non-political judge.

Unfortunately, the indications are that Sununu intends to be a status quo Governor when it comes to judicial appointments.  Sununu has pledged to continue appointing judges recommended by a “Judicial Selection Commission” started by Jeanne Shaheen.  In reality, the “Commission” consists mainly of the “good old boys” and “good old girls” of New Hampshire’s legal establishment and which would result in continuing the practice seen under Democrat Governors of appointing political-judges committed to reaching left-of-center political results, such as the infamous Claremont/Londonderry education funding decisions:

Republican candidate for governor Chris Sununu said he would continue the New Hampshire Judicial Selection Commission if elected, after more 100 lawyers and judges sent him an open letter asking him to clarify his position last week.

Contrast Sununu’s approach to that of President-Elect Trump who is relying on conservative legal minds to help select Scalia’s replacement:

NEW YORK, NY – Today Donald J. Trump released a second list of individuals he would consider as potential replacements for Justice Scalia at the United States Supreme Court. This group builds upon the highly praised list of choices he named in May 2016. These individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative leaders.

Mr. Trump stated, “We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.”

I have no doubt that the GOP “establishment” -the lobbyists, donors, operatives- want Sununu to be a status quo Governor because they believe this would give him a better chance at reelection, which in turn would give them more time to enjoy the spoils of government.

The question is whether Sununu intends to be a Governor for the establishment or a Governor for the voters who supported Trump and made him New Hampshire’s first GOP Governor in over a decade.