Opinion: After Justice Hicks, who’s next?

By LOUISE SPENCER and CLAUDIA DAMON

Published: 10-01-2023 8:00 AM

Louise Spencer is co-founder of Kent Street Coalition. Claudia Damon is an inactive/retired NH Bar Association member.

Governor Chris Sununu will soon make his fourth nomination to the New Hampshire Supreme Court, this time to replace Senior Associate Justice Gary E. Hicks, who has announced his retirement effective November 30 when he reaches the mandatory retirement age of 70. We thank Justice Hicks for his 17 years of dedicated and honorable service on New Hampshire’s highest court. We wish him the very best in retirement.

The focus now is on filling the seat he will leave vacant. At this critical time in our nation’s history, as we struggle to protect and defend individual freedoms as well as our constitutional democracy, we call on Governor Sununu to nominate a highly qualified judicial candidate with a demonstrated record not only of commitment to precedent and the rule of law, but also to promoting equality and justice for all. The public is entitled to nothing less.

Moreover, the public deserves a transparent nomination process. Transparency means accountability. On the federal level, we have seen the records of judicial nominees purposely obfuscated so that the public cannot know the truth about those who are being proposed for lifetime appointments to the bench. We do not want that to happen in our state.

The judicial nomination process should be open and responsive, not secretive and politicized. Unfortunately, the governor thus far has chosen to appoint nominees without first creating and seeking recommendations from a non-partisan judicial selection advisory committee. We urge Governor Sununu to return to this practice well used by prior administrations. With the body politic increasingly distrustful of government institutions, a transparent process provides an excellent opportunity for furthering the public’s understanding of the important bastion of our democracy that is the New Hampshire Supreme Court. It will also go a long way to inspire the public’s confidence in his nominee and ultimately the court itself.

Governor Sununu’s judicial nominee ought to be an attorney or judge who has demonstrated professional competence, leadership, personal integrity, and the highest ethical standards. That is the baseline. Much more is needed. When reviewing candidates, we urge the governor to look at the existing composition of the court, using this nomination to ensure that the court is balanced and representative of the full breadth of the New Hampshire Bar and of our state as a whole. He should appoint someone who brings different perspectives and lived experiences than those of the currently all-white, male-dominated court. Further, he should ensure that the court includes justices that come from a broad range of professional experiences. The New Hampshire judiciary needs to include judges who have spent their careers representing ordinary people, not just those who have represented corporations and government for much of their careers.

New Hampshire Supreme Court decisions affect every Granite Stater. In the months and years ahead, the court’s decisions may involve disputes around public education, electoral redistricting, voting rights, gun violence prevention, taxes, right-to-know, environmental protection, employment discrimination, reproductive freedom and more. It is essential that the public has full confidence in the court to navigate these critical issues with fairness and impartiality.

Given that the U.S. Supreme Court has taken rights away from us and has abandoned long-followed precedents, it is now more important than ever that state courts uphold the principles of fairness, equality, and the rule of law. It is essential that nominees to our New Hampshire courts, and in particular our Supreme Court, can be trusted to uphold our rights and freedoms.

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We urge Governor Sununu to bring to the Executive Council, who will vote on the governor’s nominee, a judicial nominee who possesses both the credentials and the character to carry out these vital and consequential responsibilities affecting every resident of the Granite State. Our cherished values of individual freedom, equality, inclusive democracy, and economic opportunity for all are at stake.

We urge the public to contact their executive councilor when the nomination is made in order to ask questions and share their concerns and opinions. We can no longer sit on the sidelines when decisions of such import are being considered. The public has every right to expect a transparent nomination process by which the governor chooses a nominee and the Executive Council holds a hearing to ask questions of the nominee and to carefully weigh input from the public.

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