UPDATED: AG nominee Foster says he'll recuse himself when necessary
Foster, 53, was praised by current and former legal and political colleagues at the two-hour hearing but also faced questioning on how he will distance himself from the clients of the McLane Graf law firm, which describes itself as the largest firm in the state.
Foster is a managing partner of the Manchester-based firm.
The five-member Executive Council has authority over confirming or rejecting gubernatorial nominees for department heads, and none of the five expressed concerns grave enough to prompt doubt that he will be confirmed when a vote is taken next Wednesday.
But Foster's ability to remain free of conflict as attorney general in matters concerning his clients at McLane Graf was questioned by Executive Councilor Chris Sununu, R-Newfields, and separately by a representative of the New Hampshire Sierra Club, which is battling Public Service of New Hampshire, a McLane client, over the Northern Pass project.
An advocate for the rehabilitation, rather than prolonged incarceration, of criminal offenders, criticized as too harsh legislation Foster authored as chairman of the Senate Judiciary Committee that invoked tough minimum sentences for convicted child molesters.
Sununu also pressed Foster to explain how he would handle the criminal justice side of the job given that he has no experience as a prosecutor or defense attorney.
Gov. Maggie Hassan, in nominating Foster earlier this month, called him the "ideal candidate" to follow Michael Delaney as attorney general.
'Humbled and honored'
Foster, a husband and father of two daughters who has been with the McLane firm for nearly 29 years, said he was "humbled and honored" to be considered for the same post as the late Sen. Warren Rudman, former U.S. Supreme Court Justice David Souter and Sen. Kelly Ayotte. He said he realizes he would have "big shoes to fill."
A graduate of Tufts University and the George Washington School of Law, and a former member of the New Hampshire House and Senate, Democrat Foster would be among few attorneys general with no experience in criminal justice. His background in private practice has been mostly in bankruptcy and corporate law.
One attorney general who came to the job with no experience in criminal law was Steve Merrill, who later went on to become governor.
Foster told Sununu that to make up for his lack of "prosecutorial" experience he would work with the chiefs of all the bureaus in the Department of Justice - "of course," he said, including the criminal justice bureau.
While former attorneys general have been adamantly against expanded gambling, Foster's position is not definitive.
He said Wednesday he could not recall that as a state senator in 2005, he voted against a bill that would have allowed video slot machines at racetracks and in the North Country. Foster's votes have been reported by the news media, both recently and in 2009, and he did not dispute the reports Wednesday.
Foster was vice chairman of a commission appointed by former Gov. John Lynch in 2009 to study gambling.
The commission did not explicitly oppose gambling in its 2010 report but warned of dire social costs and urged tough regulations be adopted before a gambling is legalized.
Foster said Wednesday the report was "reflective of my views."
Executive Councilor Raymond Burton, R-Bath, voiced concern to Foster that the Attorney General's Office lacks adequate funding to pursue "cold" criminal cases, such as the murder of 11-year-old Celina Cass of West Stewartstown in 2011.
Foster told councilor Colin Van Ostern, D-Concord, he would like to see the establishment of a financial fraud unit in the Attorney General's Office and said fraud cases, such as the FRM Mortgage scandal, "ought to be pursued."
Will recuse himself
Sununu asked Foster how he will avoid conflicts of interest with many of his corporate clients.
The nominee said he must, under state requirements, recuse himself from matters he "personally or substantially" worked on at the law firm, "and I would do that."
He said he would take the further step of recusing himself from any matter involving a client of the firm, even if he was not personally involved in the representation.
He said the recusal practice will continue "for a period of time," which he did not specify. At some point, he said, the need for recusal on some matters involving McLane Graf "will wear off."
But, he said, "I want to be sure that the reality and the perception are clear that everything is being treated fairly."
Foster said he would also call on attorneys general from other states who came to their offices from similar situations for advice on how they handled potential conflicts.
He said although the McLane firm represents PSNH, he was not personally involved in the Northern Pass project.
Catherine Corkery of the New Hampshire Sierra Club said the group backs Foster but is concerned about his firm's representation of PSNH because of the Northern Pass issue and because the group has been in litigation with the utility regarding emissions from its fossil fuel plants.
She said the attorney general plays a major role in working with both the Department of Environmental Services and the Site Evaluation Committee, which reviews and decides the siting of utility transmission and generating projects.
Regarding Northern Pass, Corkery said, "There cannot be any hint of bias and favoritism."
Chris Dornin of Citizens for Criminal Justice Reform, cited Foster's role in writing "very bad pieces of legislation" on Internet predators and imposing 25-year mandatory sentences on child molesters, while allowing those sentences to be extended beyond the maximum.
That child molester statute, later watered down by the House, according to Dornin, "violated civil liberties" and, was he said, "a power grab by the legislative branch over the judiciary.
"We oppose all mandatory minimum sentences," Dornin said.
But Amanda Sexton Grady of the New Hampshire Coalition Against Domestic and Sexual Violence said that when Foster chaired the judiciary panel, the state passed "some of the nation's most progressive and toughest laws against child sexual predators and worked to strengthen domestic violence statutes."
Praise from colleagues
Among those who praised Foster were neighbors, fellow Nashuans and Senate colleagues.
Former Senate Majority Leader Robert Clegg, a Republican, said the GOP leadership named Foster chair of the Senate Judiciary Committee "because he did not let politics become involved" in his work on legislation.
Attorney and former state Senate legal counsel Rick Lehmann said Foster often recused himself from votes despite being advised that it was not necessary.
Lehmann said Foster is equipped to ensure that the Department of Justice will represent "the people of New Hampshire, and not the governor or government of New Hampshire."
Rep. Cindy Rosenwald, D-Nashua, said Foster has "a rare ability to bring people together, while state Sen. Lou D'Allesandro, D-Manchester, said he "brings a special quality and that is the ability to create relationships and those relationships command respect."
Attorney Ralph Holmes of McLane Graf called Foster "a modest man" with an excellent legal mind, while Bill Barry of Nashua cited his "high morals and intelligence."
Meanwhile, David Coltin, who has been in a long-running dispute with the Attorney General's Office and with Ayotte over a criminal case that originated in 1994, urged Foster to seek out "corruption" at the Attorney General's Office.