By GARRY RAYNO, Distant Dome

Courts have long served as the final line of defense for safeguarding individual rights.

When elected officials and the executive branch fell short, citizens could seek an impartial ruling from the judiciary.

Yet that impartial ruling now seems compromised based on several recent outcomes from various courts, especially the US Supreme Court, which could also affect perceptions of New Hampshire's judiciary.

Still, viewing the courts as entirely apolitical overlooks how judges secure their lifetime positions.

In New Hampshire, the governor nominates judges subject to Executive Council confirmation, mirroring the federal process where the president selects and the Senate confirms.

Recall recent Trump-era nominees, all vetted in advance by the Federalist Society, a well-funded libertarian group backed by substantial resources that helped advance its preferred candidates through Senate confirmation.

If the US Supreme Court were truly nonpartisan, one might wonder why gerrymandering stands in Republican-led Alabama and Louisiana yet faces rejection in Democratic Virginia.

The high court has shown partisan tendencies since the Republican majority halted Florida vote counting following the 2000 election.

In New Hampshire, nominees frequently rise from superior court ranks, though recent selections have also come from the governor's administration or the attorney general's office.

Their political leanings often align closely with the governor who appointed them, though an informal tradition once required at least one justice from the minority party, typically a Democrat. Since Justice Gary Hicks departed upon turning 70 in November 2023, the state high court has lacked any Democratic member.

The court will soon address the Rand education funding lawsuit, with the state's filing due next month and arguments scheduled before year's end.

It recently ruled in a comparable education funding matter decided by the same superior court judge, David Ruoff, who authored the Rand opinion, concluding the state fell short of its constitutional duty to deliver and finance an adequate education.

The Rand decision went further, declaring the state's reliance on local property taxes to bridge the gap between state funding and actual costs unconstitutional, given the varying tax rates that conflict with the constitution's call for proportional and reasonable taxation.

For over three decades, the Claremont rulings have anchored the state's education framework, first establishing public schooling as a state responsibility and then deeming the funding mechanism unconstitutional.

The state has indicated it will urge the court to reverse those Claremont precedents when appealing the Rand outcome.

The Attorney General's Office would not pursue overturning the Claremont decisions without Governor Kelly Ayotte's approval; doing so independently would likely cost the attorney general the position.

Attorneys for the Rand plaintiffs, representing commercial and residential property owners, requested that four of the five justices recuse themselves, but all declined.

Chief Justice Gordon MacDonald served as attorney general during the ConVal education litigation and helped shape the state's approach. He stepped aside from that matter due to his prior role yet remained for Rand, arguing the cases differ, his constitutional obligation to participate, lack of direct ties to Rand, and his oath to impartiality.

Court recusal guidelines state a judge must step down when impartiality could reasonably be questioned, listing examples but noting the list is not exhaustive.

In denying the recusal request, MacDonald criticized the plaintiffs' attorneys, stating it was proper to argue facts and law but inappropriate to imply that denying recusal would undermine court integrity or public trust, likening such claims to recent attacks on judges based on outcomes.

Under MacDonald's reasoning, his potential involvement in Rand does not harm the court's standing, yet questioning that involvement apparently does.

Applying similar logic, Governor Ayotte's public criticism of the Supreme Court's 3-2 ConVal ruling, which she called incorrect while noting the state's top-10 national ranking in education spending, raises parallel concerns about perceived integrity.

However, much of that spending stems from local property taxes, and the state ranks last in its own contribution share, which prompted the Claremont, Londonderry, ConVal, and Rand cases.

Legislative leaders Senate President Sharon Carson and House Speaker Sherman Packard also faulted the ConVal decision as judicial overreach into legislative matters.

Additional events have further strained perceptions of the court, including the brief dismissal and rehiring of administrative director Dianne Martin, aligned with MacDonald, which drew whistleblower scrutiny over severance payments, and former Justice Anna Barbara Hantz Marconi's contact with Governor Chris Sununu regarding an investigation into her husband.

Upon returning, she appropriately recused from attorney general-related cases.

Two other justices targeted for recusal had prior involvement in Claremont and ConVal: Associate Justice Patrick Donovan participated in the original Claremont defense, and Associate Justice Daniel Will served as solicitor general collaborating with MacDonald on strategy.

Justice Bryan Gould, a longtime Republican Party attorney, dismissed plaintiffs' points as innuendo, though they countered with documented public statements questioning his impartiality.

With four justices connected to the issues at stake in Rand, any ruling risks fueling doubts about impartiality in such a charged context, aligning with the recusal standard when reasonable questions about bias arise.

Garry Rayno may be reached at garry.rayno@yahoo.com.

Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster's Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn and their two rescue dogs.