Governor Sununu’s announcement yesterday of a Judicial Selection Commission makes it clear that he has no intention of draining New Hampshire’s judicial swamp. The announcement:
Not the first sentence. The criteria for judicial selection will be “experience, good character and temperament.” Not a mention of judicial philosophy. In other words, Sununu is just as inclined to nominate a judicial liberal like President Obama’s nominee to fill the late Justice Scalia’s seat, Merrick Garland, as a judicial conservative like President Trump’s nominee Neil Gorsuch. (See here for an explanation of a judicial liberal and a judicial conservative.)
The “Chair” of the commission, Chuck Douglas, is an opponent of tort reform and once sued the State claiming that the judiciary has a right to “adequate funding” (the amount of which the State’s supreme court gets to determine). During his time on the State’s supreme court, Douglas was anything but a judicial conservative:
Without question, the member of the Court leading the new judicial federalism charge in New Hampshire was then Justice Charles G. Douglas III, the author of many of its decisions recognizing rights under our constitution unknown at the federal level. This is not surprising because Douglas, writing only months after he had been appointed to the high bench, was one of the first in the nation to jump on Brennan’s bandwagon. See Charles G. Douglas III, State Judicial Activism – The New Role for State Bills of Rights, 12 Suffolk L. Rev. 123 (1978). See also, Charles G. Douglas III, The Unique Role of State Constitutions: Raising State Issues in New Hampshire, 28 N.H.B.J. 309 (Summer, 1987).
The Vice “Chair,” Jack Sanders, is a Democrat who served on Governor Hassan’s judicial selection commission, which is like President Trump having Attorney General Loretta Lynch advise him on nominations to the federal bench. Sanders’ presence on the commission indicates that Sununu sees no problem with the liberal, activist judges his Democrat predecessors put on the New Hampshire bench.
The mission statement of the commission and its composition signal that Sununu has no intention of draining New Hampshire’s judicial swamp. Instead, it will be more of the same liberal, activist judges that countenance drive-by voting, meddle in education policy and block even modest reforms of the judiciary and legal profession.