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Bar News - April 20, 2001 Misguided Judicial 'Reform' Could Cause Bigger Problems Modest changes offer genuine hope Editor’s note: The following editorial appeared in the March 29, 2001 issue of The Keene Sentinel and is reprinted with permission of the publication.THE JUDICIAL BUCK has to stop somewhere. But where is the proper somewhere? That question is being raised these days in Concord as legislators sift through a stack of measures designed to reform the New Hampshire court system. Not surprisingly—because these ideas are being proposed by legislators—most of them involve giving the legislative branch of government authority to manage or overrule actions taken by the judicial branch of government. Let’s be careful here. Under the current system, judges serve until age 70. They can be disciplined by the court’s own Judicial Conduct Committee and, as we were reminded last year, even removed from office by the Legislature. But there is no formal review process. Among the measures recently introduced are bills to put the Judicial Conduct Committee under control of the Legislature; to set renewable terms for judges; to limit terms for the administrative heads of the Supreme, superior, district and probate courts; and to allow the Legislature to review Supreme Court rules. Some of these proposals make sense, but others would make a mockery of the constitutional separation of the three equal branches of government. The difficulty in deciding how much legislative interest in the courts is too much legislative interest was highlighted last week at a Senate hearing. Sen. Mark Fernald, a Democrat from Sharon, is calling for a constitutional amendment to set up a permanent selection committee to recommend judicial nominees to the governor, who makes judicial nominations, and to the Executive Council, which must confirm or reject them. It’s a good idea. Gov. Jeanne Shaheen formed such a committee last year, but she did it by executive order. The committee will last only as long as she or a like-minded successor is in office. And, although her committee members do represent a broad range of New Hampshire citizens, the governor picked them herself. Under Fernald’s system, members would also be appointed by legislative leaders and the chief justice of the Supreme Court. However, Fernald’s committee wouldn’t just suggest judicial candidates. It would also review the judges every eight years and have the authority to remove them from the bench if it didn’t like what it saw. "There have been judges who have been less than stellar, and they stayed on," Fernald said. "I think we can do better than that." No doubt. But, assuming Fernald is correct, his idea would simply trade one problem for another. Instead of an all-powerful judiciary, New Hampshire would have an all-powerful judicial selection committee. The political implications of such a situation are enormous. Legislators would do better to accept the fact that there will always be tensions between the courts and the State House. That’s the way the system is supposed to work. Then they could concentrate on more modest, but still significant, reforms. Giving the Judicial Conduct Committee some independence from the Supreme Court would be a good start. So would changing the judicial retirement system, so that judges could retain pensions if they stepped down early or were removed from the bench. (A bill to that effect recently passed the House.) It would also be a good idea to redefine the role of the chief justice to eliminate his need to lobby the Legislature for money. And requiring a regular rotation among the Supreme Court justices in that position would address some of the specific concerns that last year’s impeachment inquiry unearthed. The courts could also be made more accountable through some sort of public review process, as long as it didn’t allow the reviewers—whoever they might be—to fire judges for taking politically unpopular stands. Think of it this way. The Supreme Court’s Claremont school-funding decision caused an explosion of rancor in Concord when it was issued in 1997. But now, more than three years later, a large majority of New Hampshire citizens and politicians recognize the decision’s wisdom and fairness. Yet, what would have happened if a system of judicial term limits or a radical review process had been in place before that case was decided? Maybe the justices would have followed their constitutional convictions. But it’s at least as likely that they would have found a way to overlook the state’s school-funding inequities, to avoid the possibility that they might end up pensionless and out of a job. |
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