THE NEW HAMPSHIRE Bar Association has at times been critical of some of the actions of the Supreme Court, and some of the justices, since the impeachment crisis arose. But we think that the court’s critics need to take a time-out and wait until all the facts are out before continuing the latest rounds of court- and justice-bashing.

The first round came in the wake of disclosures by two of the members of the court’s Judicial Conduct Committee that Justices Broderick and Duggan were somehow involved in the process that led to the resolution of the complaints against Chief Justice Brock. This has led to immediate calls for investigations and even criminal indictments of Justices Duggan and Broderick.

While perhaps this reaction should surprise no one in the current atmosphere, half a moment’s reflection would suggest it is premature, to say the least. Recall first that we have only heard from the two dissenting members of the JCC, who were given a limited release from the JCC’s confidentiality requirements. While it would be equally unfair to challenge the motivations or honesty of the dissenters, and we don’t, shouldn’t we wait to hear from the others involved before we decide what exactly took place, let alone call for all kinds of dire punishment?

Keep in mind that it is precisely because others on the JCC, and the justices themselves, are bound by the JCC’s rules of confidentiality that they have not spoken out. Are they to be penalized and pilloried for playing by the rules? Moreover, all of the justices involved, including the chief justice, have requested the JCC waive its confidentiality rules. This suggests to us that there is another side to be heard. Until we have heard it, shouldn’t we suspend a public debate whose rules permit only one side to speak?

Most recently, criticism was aimed at the court for the adoption, by Rule of Court, of the recommendations of the Task Force for the Renewal of Judicial Conduct Procedures, co-chaired by Rev. Jonathan DeFelice, president of St. Anselm’s College, and attorney Jack Sanders of Hampton. While it is certainly true that the Legislature is currently considering very similar proposals, perhaps some have lost sight of the fact that the court created the commission in the first place. As the court’s spokesperson, Laura Kiernan, has pointed out, the court’s action does not preclude the Legislature from proceeding along similar lines. It could be quite some time before both houses agree upon a proposal and enact and fund it. Meanwhile, the new committee can at least start its work. We might ask ourselves whether the court would have faced criticism had it not acted now, especially in light of the current storm of criticism over the existing JCC and its procedures.

One final historical footnote is in order. The confidentiality rules that have cloaked the actions of the JCC in dealing with the investigation of Chief Justice Brock’s case stemmed from rules in place when Chief Justice Brock reported his own possible misconduct to the committee. But over a year ago, the JCC adopted new rules that have made the process significantly more open. Indeed, if those rules had been in existence at the time Justice Brock’s investigation began, there would not now be a need to seek a waiver of the confidentiality rules. Who proposed opening of the procedures of the JCC, as well as the Professional Conduct Committee, which deals with attorney discipline matters? It was Chief Justice Brock.

Americans as a people rightly pride themselves on their fundamental sense of fairness. Doesn’t fairness require us now to wait until we know all we can about what happened before we judge the judges? Time enough then, if those facts suggest impropriety, to act.

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