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.

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