Monthly Archives: January 2017

President Trump Sets a High Bar for Governor Sununu

President Trump has announced that on Thursday of next week he will name his pick to replace the late Antonin Scalia on the United States Supreme Court.

It appears that Trump has narrowed his choice to two or three finalists:

“I’ll be making my decision this week, we’ll be announcing next week,” Trump said, after meeting Tuesday with Senate leaders from both parties to discuss the vacancy. “We’ll pick a truly great Supreme Court justice.”

This, as sources close to the selection process tell Fox News the list of possible candidates is now down to three names, all of them federal appeals court judges: Judge William Pryor in Alabama, Judge Neil Gorsuch in Colorado, and Judge Thomas Hardiman in Pennsylvania.

All three of these judges are legal superstars.  For example, from Jonathan Adler at the Volokh Conspiracy:

All three of the reported finalists are highly qualified, conservative justices. All would make for strong Supreme Court justices, … 

Any of these choices would set a high bar for Chris Sununu when his turn comes in July of this year and October of next year to nominate justices to the New Hampshire Supreme Court.  Sununu’s nominations will be a large part of determining his legacy.

Sununu is at a significant disadvantage when compared to Trump, however, when it comes to picking conservative justices.

First, let’s clarify that a judicial conservative is a completely different animal from a judicial liberal and from a political conservative.  A  judicial liberal is a judge who whenever possible will reach a liberal political result.  Essentially, the judicial liberal decides what the “right result” is and then strives to find some plausible way to reason backwards to that result.

A political conservative describes someone’s political leanings, not his or her philosophy of judging.  For example, Justice Scalia, while very politically conservative, reached liberal results in many cases.  For example, ruling that burning the American flag was constitutionally protected free speech.  What made Scalia a judicial conservative was his philosophy of judging – an originalist when it came to interpreting the constitution (giving constitutional provisions the public meaning they had at the time of their adoption) and a textualist when it came to interpreting statutes (discerning legislative intent from the words of the statute, not from extra-textual sources like “legislative history”).

The three judges on Trump’s short-list are all appeals court judges with extensive paper-trails, including judicial opinions, articles and lectures.  These paper-trails allow Trump’s team to determine the judicial philosophy, and the reasoning and writing abilities of the judges.

In contrast, Sununu doesn’t have a similar “bench” from which to draw.  New Hampshire does not have an intermediate appellate court.  Rather, appeals are directly from the trial courts to the State supreme court.  The majority of the work of a trial court judge tells us very little about the judge’s judicial philosophy and whether the judge is otherwise qualified for the supreme court.  Thus, if Sununu wants to tap an lower court judge to fill the upcoming vacancies, he will not have the benefit of the paper trail that Trump has had in filling the Scalia seat.

Moreover, with the exception of two years, 2003-2004, the Democrats have held the corner office and have been appointing judges for the past twenty years.  The three judges on Trump’s short-list, in contrast, were all appointed by President George W. Bush.  It’s safe to say that the Democrat Governors who preceded Sununu were not looking to appoint judicial conservatives to the bench.

So Sununu is going to have to look outside the bench if he wants to put judicial conservatives on the New Hampshire Supreme Court.  It is imperative that he understand that a political conservative is not necessarily a judicial conservative.  And that a nominee who does not present himself or herself as a judicial conservative, i.e. an originalist and a textualist, and is able to explain why it is important that a judge be a judicial conservative will, once exposed to the rarified air in Concord, begin moving to the left.

The ideal candidate would be someone with a paper trail.  So Sununu will not have to wonder if the candidate is just talking the talk to get nominated, but will not walk the walk if confirmed.

No more Souters.

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? Continue reading New Hampshire Republicans Living Up To Sobriquet “Stupid Party”

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

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.

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. Continue reading Democrats Hoist By Their Own Petard on Right to Work

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. Continue reading New Hampshire Legislative Hearings Are Largely a Waste of Time

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. Continue reading Reforming New Hampshire’s Business Taxes