At this writing, Judge Roberts has been confirmed as Chief Justice of the United States, and President Bush has nominated 61-year-old Harriet Miers as Associate Justice of the United State Supreme Court.  Ms. Miers is now the subject of intense media scrutiny; Senate hearings are planned for the near future, and it is certain they will be highly publicized and lengthy.

While not as acrimonious as other recent Senate confirmation hearings (for example, the Committee hearings for Robert Bork were so contentious as to make “Bork” a verb), the Roberts’ hearings were partisan and occasionally rancorous.  Republican Senators made opening statements excoriating judicial decisions they considered unprincipled; in the same vein, Democratic senators cast themselves as the sole protectors of the constitutional rights of the citizenry.  Senator Hatch complained that the confirmation process had changed for the worse, using as an example the nomination of Judge Sutherland from his home state of Utah in 1922.  Noting that the Senate approved the nomination on the same day it was made, by unanimous vote, Senator Hatch stated that “the judicial selection process has changed because what some political forces want judges to do has changed from what America’s founders established” and that he believed that the confirmation process has sometimes been “unbecoming of the Senate and disrespectful of nominees.”  

Senate confirmation hearings of appointees to the Supreme Court are a relatively new phenomenon.  The first nominee to testify before a Senate Judiciary Committee was Harlan Fisk Stone in 1925.  In 1949, Justice Minton simply declined to appear before the Senate when President Truman nominated him and was confirmed anyway.  It was not really until the mid-1950’s that the idea of a nominee facing a line of questioners was considered routine. 

Why is this so?  The enhanced scrutiny of judicial candidates cannot really be only because of the increased impact on society the breadth of cases decided by the Court has had.  Concern about  the appropriate role of the Court has been widespread for at least 100 years.  At the turn of the century, when a very conservative Supreme Court invalidated social legislation on the grounds of “substantive due process” in cases such as Lochner v. New York, 198 U.S. 145, 25 S.Ct. 539, 49 L. Ed. 937 (1905), loud complaints were made by the losing side.    In the 1930’s, the Court’s invalidation of President Roosevelt’s “New Deal” laws drove him to propose his “court-packing scheme” to increase the size of the Court based on the number of judges over a certain age.  In the 1950s, when the Court’s decisions effected dramatic change on American society, first, ruling that segregation was unconstitutional in 1954, and then through the 1960s, revolutionizing criminal procedure based on constitutional interpretation, conservative senators became more interested in aggressively questioning nominees.  But when Justice White was nominated in 1962, his hearing lasted 8 minutes and consisted of 8 questions.

So what has changed?  One answer might be societal change rather than change in legal principles - the Senate’s expectation of a candidate’s longevity.  It was obvious from listening to the Roberts’ confirmation hearings that the Senators assumed that a 50- year-old judge will decide cases for 30 or 40 years.  At least one Senator has said that the vote on the 61-year-old Ms. Miers is important because she will be deciding cases at least for the next 20 years.  We have become used to the idea that a federal Supreme Court judge will remain on the bench until he or she dies.  Appointment for life to a federal court is just that - appointment for as long as an individual chooses to remain a judge.  And fewer federal Supreme Court justices are choosing to resign.  Chief Justice Rehnquist declined to resign while battling a terminal illness; 85-year-old Justice Stevens reportedly has no plans to retire.

The New Hampshire Constitution, which contains an age limit on the life tenure of judges, casts this societal change in bold relief.  Enacted in 1784, the Constitution was amended in 1792 to provide that “no person shall hold the office of a judge of the court after he obtains the age of 70,” by vote of 2,607 to 912.  In 1982, the New Hampshire Supreme Court rejected a challenge to this constitutional provision by a 70-year-old judge that did not want to retire in Grinnell v. State, 120 N.H. 823 (1982).  The Court noted in its opinion in Grinnell that the mandatory retirement provision may well “deprive the bench of many able jurists who are forced to retire at the height of their intellectual creativity, when they are making an estimable contribution to the people we serve,” Id. at 828, but noted:

“The 70-year age limit was adopted in 1791 as an integral part of the scheme to maintain judicial independence.  The Article placed a neutral outside limit on tenure which otherwise was to last as long as the judge maintained ‘good behavior.’   Appointments for the 70-year age cap guarded against the consequences flowing from the previous system, one which was marked by unfettered discretion in the legislature.”  Grinnell v. State, 120 N.H. 823, 827 (1981).

Life expectancy has risen dramatically not only since 1791, but even in the last 100 years.  It is indisputable that appointment of a New Hampshire judge “for life” in 2005 means something substantially different than a federal appointment, largely because of advances in medical science.

It is also more difficult to amend the federal Constitution then it is to amend the New Hampshire Constitution.  The New Hampshire Constitution has been amended over 137 times since 1784; the Federal Constitution has been amended only 27 times and of those, 10 amendments were made practically contemporaneously.  While the guiding principle behind the two Constitutions—a government of divided powers in three separate branches—is the same, societal change has highlighted the differences between them.

Perhaps the increased scrutiny and even the partisan bickering at the federal level is symptomatic not of a problem in our system of government, but of its very vitality.  Creation of and tacit acceptance of an entirely new procedure—Senate hearings on judicial appointments unknown to the framers— seems to have arisen in recent years as a response to longer exercise of judicial authority reposed in each particular judge because of the judges’ expected increased life span.  It may be that, as it has become apparent that each new federal judge’s term may well be longer than the historical average,  a growing number believe greater scrutiny of judges is appropriate.   

Seen in a historical light, the development of a procedure of thorough Senate confirmation hearings is perhaps neither “unbecoming” nor “disrespectful,” but rather, an expression of the acceptance of the vitality of the separation of powers principle. After all, questioning about the judicial philosophy of judicial candidates is a tacit recognition that we expect judges to decide cases in accordance with their understanding of what the law requires, and that we recognize that our system can only function as long as they are  not only capable but independent.

Richard B. McNamara is president elect of the New Hampshire Bar Association and an attorney at Wiggin and Nourie in Manchester.

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