FOR MORE THAN two months the Bar Association has remained silent during the public controversy over the nomination of Thomas A. Rappa as the presiding justice of the Gorham District Court and special justice to the Berlin District Court. The continuing delay in the confirmation of this appointment, however, cries out for comment at this time.

Judge Rappa, a special justice to the Plymouth District Court since 1988, was nominated for the Berlin/Gorham judgeships in May after undergoing a rigorous merit selection process established by Executive Order 2000-9 last year. A Judicial Selection Commission, composed of 11 members, was charged with evaluating all candidates for judicial positions using nationally accepted, objective criteria including integrity, legal knowledge and ability, judicial temperament, impartiality, experience, diligence and commitment to justice. The process includes the candidate completing a detailed 40-question application and being interviewed by the commission. The goal of the selection process is to select judges based on merit rather than political considerations, and thus enhance public confidence in the judicial system.

On June 20, Rappa’s nomination was tabled and to date there is no indication that it will be approved. We are concerned that the continuing delay in Judge Rappa’s confirmation threatens to undermine this merit selection process by injecting politics into the mix. The concerns raised over his nomination to date, in our opinion, are groundless and do not meet the merit-based criteria for evaluation and selection of judicial candidates.

Two objections to his confirmation have been raised publicly, and neither withstands reasoned analysis.

The first objection was raised by a member of the Executive Council who has publicly concluded that Judge Rappa is "anti-firearm" as the result of comments made by Rappa during the Council’s public hearing in June. Rappa said that it was his practice as a district court judge to order the removal of firearms when issuing temporary restraining orders in domestic violence cases. It is a matter of federal law to remove firearms following issuance of a permanent restraining order. Doing so at the temporary hearing stage is a common practice among district court judges. Numerous studies confirm the experience of law enforcement authorities: The period immediately following the issuance of a temporary order tends to be the most dangerous for the victim of the domestic abuse and/or violence. A recent study by the Governor’s Domestic Violence Fatality Review Committee showed that in more than 50 percent of the cases studied, the homicide occurred shortly after the couple had separated. Judge Rappa’s practices in this area have been consistent and exemplary; he has been meeting the need for public safety and following the common practice of New Hampshire’s district courts. To suggest otherwise not only represents irresponsible public policy by increasing the risk of homicide in domestic disputes, but also directly injects a political issue into the process of merit selection of judges.

A second objection raised to Rappa’s nomination was that he does not reside in the Berlin-Gorham area. Judge Rappa has served the Plymouth district well from his home in Bath and office in Woodsville – both in northern Grafton County. While geography may be an important concern for a district court judge, it should only be raised as a factor if the nominee’s place of residence would interfere with the ability to perform the job of a district court judge. No such risk of interference has been demonstrated in this case. Woodsville is a reasonable distance to Berlin and Gorham, and certain emergency matters can be handled by phone. Distance has not interfered with Rappa’s ability to serve the Plymouth district.

The Council has confirmed numerous nominees in the past to serve in districts outside their home district. In fact, having a judge from a town outside the judicial district would greatly reduce the likelihood of conflicts and consequent inefficiencies and delays caused by the familiarity and potential prior representation of residents appearing before a judge from the locality. In Coos County, for example, there are only 25 active attorneys. In such rural areas, not only is the professional community few in number, but its residents tend to have lived in the communities for a long time. The chances of conflicts, therefore, are already disproportionately high in the North Country. The nomination of a judge from an adjoining county can actually better serve the community’s needs and speed access to justice by decreasing the chance that the judge will be disqualified because of a conflict of interest due to prior contact with parties in the case.

Moreover, geography does not seem to be an issue to Councilor Ray Burton, who has represented the North County for decades. Further, no opposition to Rappa was voiced at the special hearing on his nomination held in Gorham by Burton. Clearly, the people of Gorham and Gorham are not opposed to Rappa’s nomination.

Delaying Rappa’s confirmation does not serve the people of Berlin and Gorham, whose courts are being staffed by a succession of part-time judges from other locations. An even greater disservice, however, is being done in terms of the public’s confidence in the non-political nature of the merit selection process.

As it stands now, we have a judicial candidate with an unblemished record who is apparently being denied an appointment not due to his performance on the bench, but because of unfounded assertions regarding his views on a political issue such as gun control, or because of inconsistently applied standards of geographic preference. As a result, the merit selection process itself is in grave danger of being subverted.

The objections raised regarding Rappa’s fitness for the Berlin-Gorham judgeship are not consistent with the merit-based selection process. We urge the Executive Councilors who have opposed this nomination to reconsider this candidate on the merits of his previous service on the bench and his record as an attorney and confirm his nomination without further delay.

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