Chris Sununu Has His Harriet Miers Moment

Remember Harriet Miers?  She was President George W. Bush’s choice to fill the United States Supreme Court vacancy left by Sandra Day O’Connor’s retirement.  Here’s what the late Judge Robert Bork had to say about Miers back in 2005:

TUCKER CARLSON, MSNBC HOST: Are you impressed by the president’s choice of Harriet Miers?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Not a bit.  I think it’s a disaster on every level.

CARLSON: Why?  Explain the levels on which it’s a disaster.

BORK: Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever.  Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already.  So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by.  I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in  a way:  it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.  There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution.  And all of those people have been overlooked. …

The same concerns raised by Bork apply to Governor Chris Sununu’s nomination of “Bobbie” Hantz Marconi to the New Hampshire Supreme Court.  From Sununu’s statement announcing the nomination:

“I am incredibly proud to nominate Bobbie to New Hampshire’s highest court,” said Governor Chris Sununu. … Throughout her distinguished career, she has exhibited a passion for the law and public service, both of which will serve her well as she brings a fresh perspective to decisions on the most pressing legal questions facing our state.”

Bobbie is currently a shareholder at Sheehan, Phinney, Bass & Green, P.A. where she serves on the Management Committee. Her practice focuses on civil litigation, with significant concentrations in land use, construction defects, insurance coverage, partnership disputes, trust and estates, family law, and contract disputes. Long regarded as one of New Hampshire’s top litigators, Bobbie was recently recognized as one of the 2017 Best Lawyers in America. Governor Sununu made his selection from a list of recommended candidates received from his bi-partisan Judicial Selection Commission.

Wonderful.  But she has no experience in constitutional law.  A career litigating construction defects, insurance coverage, etc., even if one is the best there is at it, hardly qualifies one to sit on a court that has the final word on whether a law, regulation or other governmental action is constitutional or not.

And what is Marconi’s judicial philosophy, if she even has one?  As Bork noted with respect to Harriet Miers:

it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already.  So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. 

Sununu’s nomination of Marconi is, to again borrow from Bork, a slap in the face to the conservatives who supported him.  Sununu really couldn’t find anyone who has worked out a judicial philosophy consistent with the role of a judge under our system of government?

As I noted in a prior post, judicial philosophy is the most important consideration when nominating a judge:

… Only candidates whose judicial philosophy is based on originalism and textualism should be recommended.  Simply put, a judge who is NOT an originalist/textualist is a judge who to some degree substitutes or adds his or her own policy preferences for or to what the law says.

Textualism refers to the interpretation of statutes.  A textualist interprets statutes based on the reasonable meaning of the words in the statute, without considering material outside the statutory text such as “legislative intent.”  In other words, textualism is based on the concept that we are governed by the laws a legislature actually passes, not what a judge thinks the legislature thought it was passing or what a judge thinks the legislature should have passed.

Originalism is the application of textualism to constitutional provisions.  It recognizes that constitutions by their nature cannot contain the same type of detail as statutes, so constitutional provisions should be interpreted expansively, rather than narrowly.  An example is interpreting the First Amendment to protect flag-burning because flag-burning while not technically speech has the same purpose as speech criticizing or denouncing America or some aspect of America.  However, an expansive interpretation does not mean an unmoored interpretation, such as interpreting a duty to cherish public schools to mean a judicially enforceable right to an “adequate” curriculum (adequacy to be determined ultimately by the judiciary) and to “adequate” State spending on public education (adequacy again to be determined ultimately by the judiciary).

The nomination is also a slap in the face to conservatives because it is identity-politics. From the very first paragraph of Sununu’s announcement of the nomination:

… If confirmed, Bobbie will be only the third woman in history to hold a seat on the New Hampshire Supreme Court.

Here is what Bork had to say about such identity-nominations (my term, not his) when he was discussing Miers:

CARLSON: Yeah, that’s essentially what they are some decent people, but repeating a line that’s been devised by the PR office of the White House — claim that she is a great pick because she brings diversity of experience.  Not only is she a woman, and that supposedly — for reasons I don’t quite understand — is very important, but beyond that, she has followed a different path than most Supreme Court nominees.  She hasn’t been a judge, et cetera.

Is there any truth that that’s an important qualification?

BORK: No, I think not having been a judge is all right.  A lot of justices hadn’t been judges before.  But I think this idea that it’s important to have a woman’s perspective, or something of that sort, begins to treat the Supreme Court like a legislature, in which everybody has to be—all groups have to be represented in some way.  And that’s exactly the wrong message to send.

The court is not supposed to be a legislature. …

This nomination is a home run for Democrats.  From Attorney Kate Hanna, who served in various capacities for various Democrat Governors, including as Chairman of the Judicial Selection Commission under Govenor Shaheen:

“At a time when Republicans and Democrats find it difficult to agree on anything, I applaud Gov. Sununu for carrying on the New Hampshire tradition of nominating a wise and measured person for our Supreme Court … ” 

When a Democrat lawyer calls a judicial nominee “wise and measured” rest assured that the nominee is no judicial conservative.

I hate to say I told you so, but I told you so.  This disaster of a nomination is exactly what I warned would happen when Sununu named his Judicial Selection Commission:

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.

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