THE NEW HAMPSHIRE legislature is preparing for a session that will feature numerous proposals aimed at "reforming" the judiciary. In assessing these measures, the Bar Association encourages all citizens of this state, including our elected representatives, to understand and appreciate the importance of "judicial independence" to both our system of government and our rights as individuals.

Judicial independence insulates the judiciary from the influence of political institutions, interest groups and the general public. In 17th Century England, judges served at the whim of the king. The result was that the king controlled a judge's job and salary - and his decisions. Seeking to avoid this situation in America, our founders established the judicial branch as co-equal with the other branches of government. The framers of our Constitution provided that federal judges should have lifetime tenure without the possibility of their salaries being reduced. Insulating the judiciary from external pressures is intended to free judges to make decisions rooted in law rather than upon political considerations, fear, financial influence or the identity of the litigants.

U.S. Supreme Court Justice Hugo Black may have put it best when, in a 1940 case known as Chambers v. Florida, he wrote that judicial independence enables courts to "stand as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are victims of prejudice and public excitement."

While the legislative and executive branches typically deal with important issues in the abstract, the judicial branch stands at the "front lines" of democracy. The judicial branch applies to individuals the laws that are created by the legislature and enforced by the executive branch. In a criminal case, for example, it is the executive branch that prosecutes citizens for alleged violations of laws created by the legislature. However, it is the judicial branch that must ensure that the other two branches apply their powers fairly and dispassionately to each individual defendant. Without an independent judiciary, those accused of crimes or civil wrongdoing would have no means by which to seek due process, and would risk being subjected to "vigilantism" or government oppression.

Remember that the legislative and executive branches are composed of elected public officials who serve at the pleasure of the majority. Understandably, they must generally try to act to do "the greatest good for the greatest number." The judicial branch, however, is the branch of government that deals on a daily basis with the rights of individual citizens involved in specific and unique disputes. Even in cases such as the Claremont school funding case, the judges involved, while perhaps deciding issues that will affect many people, are still doing so in the context of a specific case. While judicial decisions in cases such as Claremont may change public policy, the actions of the judges hearing the case are still framed by the specific facts of the case and the relevant legal issues.

The judicial branch is a primary "check" in our system of checks and balances that protects the rights of the individual. If a sufficient number of citizens disagree with a constitutionally-based case such as Claremont, the system of checks and balances again works to allow a constitutional amendment. Alternatively, legislation can be proposed and enacted to accomplish the mandate of Claremont in a manner consistent with the will of the majority. In essence, the push and pull of our three-branch system of government serves to both advance the overall policy objectives of the majority while simultaneously protecting the fundamental constitutional rights of the individual.

In New Hampshire, we are fortunate to have judges who, based upon this writer's experience, are both hard-working and dedicated to the ideal of applying the laws of this state fairly and dispassionately.

However, even a good judicial system can be made better. Increased accountability for judges based on their fitness for office, competence and diligence - and not upon the content of their decisions - is worthy of consideration. The New Hampshire Bar Association intends to support measures that would improve judicial accountability while continuing to protect judges' ability to make independent decisions based solely upon the facts and the law. While it is important that our judges know the law, work hard and demonstrate courteous and proper behavior on the bench and off, it is equally important that our judges remain free to apply the law to the facts of each case without fear of political consequences.

Whether you live in Claremont or Rye, Franklin or Hanover, Manchester or Concord, an independent judiciary is critical to your ability to live your life as a free citizen of New Hampshire and this country. The people of New Hampshire are the clients of the attorney members of our Bar Association, and we support judicial independence on behalf of the people. Our profession's ability to defend our clients' constitutional and legal rights depends upon the existence of a truly dispassionate, non-political and independent judiciary.

Proposals to ensure merit selection of judges and to develop means to further enhance judicial "accountability" may improve New Hampshire's judiciary. But any effort to politicize our judges, influence their decisions and weaken the balance of power among the three branches of government under the banner of "reform" will deprive every New Hampshire citizen of the very freedoms and due process that form the foundation of our country's much-admired political system.

The consequences of overreaching judicial "reform" could be dramatic and damaging to public confidence, and we must all remain vigilant in the upcoming months to avoid eroding those constitutional freedoms and rights that we cherish.

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