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Bar News - January 7, 2005 Politics Shouldn't Influence Judicial Selection By: Richard A. Hesse Editor's note: The following opinion piece, which originally appeared in the Dec. 31 Concord Monitor, is published with the permission of the author. NO ONE DOUBTS that appointment of a justice to the New Hampshire Supreme Court is a matter of vital public concern. After all, justices serve on the court until they reach 70 years of age. The constitution declares that judicial power shall be vested in the Supreme Court, but beyond limiting the term of justices, the constitution says nothing about the qualifications for office. It falls to the governor to nominate and with the approval of the Executive Council to appoint judges to the Supreme Court. Both the governor and council are political branches of the government. So we might fairly conclude that the constitutional intention was that the political institutions would have their say in the processes by which judges are selected. But the constitution expressly declares that preservation of individual rights requires that there be an impartial interpretation and administration of laws. Whatever role politics may play in the appointment processes, justices of the court are sworn to uphold the constitution and the laws of the state without regard to political influence. Gov. Craig Benson, faced with the responsibility to name a fifth member of the court, is said to want a "strict constructionist," someone who will not be a judicial activist. It is hard to know what that means to the governor and council or for the citizens of the state. At a minimum, such clichés are a reflection of political attitudes and beliefs. I suppose a strict constructionist and one who is not a judicial activist might take the position that unless the constitution specifically confers a right, it does not exist. That would lead to the conclusion that the New Hampshire Constitution does not recognize, for example, the right of parents to be free of unreasonable government interference with the raising and education of their children. Judicial recognition of parental rights as a constitutional matter has been part of our law for years. The strict constructionist would have to find some alternative expla nation for retention of those rights or would have to oppose their inclusion as constitutional rights. Of course the Legislature might enact statutory rights to protect the parent-child relationship, but what the Legislature gives, it can take away. The importance of constitutional recognition of rights is the limits imposed on legislative interference with those rights. Even when the constitution does speak, how does a strict constructionist respond to the language, for example, of Part 1, Article 2: "All men have certain natural, essential, and inherent rights - among which are enjoying and defending life and liberty; acquiring, possessing, and protecting property; and, in a word, seeking and obtaining happiness." Does this mean that you and I have a right to enjoy life as we see fit so long as we are not harming others? Would that include smoking marijuana in the privacy of my home (assuming I have any such privacy) or watching X-rated movies by myself in a cabin in the middle of my 40 acres? You get the point. It will be difficult for the new justice to maintain her or his independence from the political winds and satisfy those who clamor for strict construction of the constitution. Deference to the Legislature on questions of constitutional rights has not been our tradition in New Hampshire. As early as the 1790s, the state's highest court exercised its power of judicial review over legislative actions, and by 1816 the tradition was firmly established in our law. Importantly, Part 1 of the New Hampshire Constitution - our Bill of Rights - spells out limits on legislative power precisely because the framers and those who voted to adopt it well understood that the Legislature can, at times, behave like a tyrant. The governor and council would be well advised to look for intelligence, sound judgment, judicial temperament, communication skills and, of course, integrity. Entering the swamp of constitutional interpretation as an abstract proposition can be intellectually stimulating, but it will serve no constructive purpose in the process of selecting a new justice for the Supreme Court. Richard A. Hesse is an emeritus professor of law at Franklin Pierce Law Center in Concord. Opinions in Bar News Unless otherwise indicated, opinions expressed in letters or commentaries published in Bar News are solely those of the authors, and do not necessarily reflect the policies of the New Hampshire Bar Association Board of Governors, the Bar News Editorial Advisory Board or the Bar Association staff.
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