CREATED BY THE outgoing governor's executive order, the two-year-old Judicial Selection Commission may not survive another year despite generally high marks from the Bar and success in the confirmation of its nominees.

"My impression is that the Bar has been very impressed with the thoroughness of the commission's work and the quality of its recommendations," said NHBA President Marty Van Oot.

However, only two of the five major-party gubernatorial candidates said they would retain the mechanism for screening nominees for state judicial positions as it currently exists, and a third who expressed support for the concept would free the governor from having to choose nominees from the commission's list. (See page 4 for comments from Republicans Craig Benson, Gordon Humphrey and Bruce Keough, and Democrats Beverly Hollingworth and Mark Fernald.)

There's no question that the 11-member, all-volunteer commission has been a fast-moving, hard-working group: Since it was established by Gov. Jeanne Shaheen's executive order on June 30, 2000, the panel has reviewed applications from 276 candidates and made recommendations that have resulted in 16 judicial appointments (see accompanying list below).

Under the terms of the executive order, the commission develops a short list of recommended nominees for the governor to consider. The governor has kept to her pledge to choose only from the list submitted to her, said Katherine Hanna, the commission's chair and a Manchester attorney. The judicial nominees, whose names are then made public, are considered by the Executive Council, which has the ultimate vote on a candidate's confirmation. Since the commission was created, only two of Shaheen's nominees have failed to gain confirmation.

Hanna said she has been pleased by the enthusiasm and diligent attendance of the commission members to the many hours of organizing and deliberations, interview sessions, and reference-checking. She said the challenges have varied from position to position - from sifting through an avalanche of more than 100 applications for three superior court judgeships to conducting outreach to recruit a sufficient field of applicants for part-time district court judgeships in smaller communities.

"There were roughly three times as many applicants for judgeships in the urban or southern tier counties as there were for some of the North Country judgeships," Hanna said, adding that the smallest number of applicants for any position was seven. Striving for diversity was a challenge: Only three of the 16 judges confirmed during the JSC's period of operation were women, and all three were for district court posts. Overall, 23 percent of the applications received were from women, but Hanna did not divulge how many women were recommended to the governor by the JSC.

Hanna also did not offer an opinion as to whether the intense focus of the Legislature on potential changes to judicial tenure has dampened attorneys' interest in judgeships. A more practical issue preoccupied many applicants to the part-time judgeships, she said: the number of court days the judgeships would entail. "There was concern about the lack of a job description," Hanna said. "If you are a district court special justice, you want to know how many days you will sit. If you have to sacrifice a portion of your practice, how much judge time will you get? It was always a big question mark," said Hanna.

In an interview with Bar News, District Court Administrative Judge Edwin Kelly explained that during this court budget crunch, he has cut back on sessions in all courts. He also has been utilizing full-time district court judges to fill in days in other courts, thus reducing the number of days available to part-time judges, who are paid a per diem rate for those days that they are assigned to sit. Although each court is allocated a basic amount of judicial time for the year using a formula that accounts for volume and complexity of the caseload, that judicial time is now often filled by judges appointed to other district courts. Kelly said the scheduling of judicial time in district courts is a constant juggling act in which he must balance factors such as cost (minimizing the flexible costs of per-diem payments), available judge time from full-time judges, and the scheduling requirements or constraints of each court and the personnel involved.

Hanna said all the commission could do was encourage candidates to inquire about the potential time demands for a particular court and explore how it operates.

Hanna offered some insight into the commission's process. Generally, the commission members have screened resumes to choose a potential list of candidates for further inquiry, which includes checking on disciplinary complaints and reference-checking. "Calling references is among the most important tasks of the commission, and we spend a lot of time on that," Hanna said. "We are especially interested in the indirect references - speaking with the parties in opposing cases for example, and lay people who routinely come in contact with the applicant, as well as other lawyers. We ask about demeanor, integrity, organization and communication skills, and the ability to communicate with people of all types."

Hanna said the commission has sometimes heard from unsuccessful applicants who complain that the commission hasn't been diligent because it hadn't called all of their references. Hanna said the commission often does not make such calls for fear of spreading it around too widely that someone is under consideration, and because it was most interested in opinions from those not biased in favor of the applicant.

The commission meets with finalists in interviews that last about 45 minutes in which the candidate is asked to sketch his or her legal career, or, in the case of sitting judges, what prompted him or her to become a judge. Commission members pose various scenarios to see how applicants would respond to certain situations - whether an issue should be handled in chambers or in open court or how the candidate would deal with pro se litigants.

"We try to make interviewees comfortable, but it is inevitably going to be a stressful situation for the interviewee," Hanna said, adding that the commission responded to feedback from one of the first applicants by changing the setup of the room. "We started out with a single chair facing the u-shaped table where the commission sat," said Hanna. "The nominee later said to me that it was a pretty intimidating situation and suggested we should at least have a table so the applicants don't feel so naked out there. We did that." Interviews usually take place at the Bridges House, on Mountain Road in Concord, a location that is remote from other government offices, which makes it easier to keep the process discreet.

Marilyn MacNamara, a JSC member, a former family law lawyer from Lebanon and now executive director of the Legal Advice & Referral Center, said the decision-making process has come down to "distinctions more of fit than fitness."

"Virtually all of the applicants are fine lawyers," McNamara said. "In most cases, we are fine-tuning a group of very capable applicants, asking if we think they have the staying power and desire to do the job. In the interviews, what we try to pick out is the sense of commitment to community."

Hanna said the issue of compatibility with a judge's lifestyle is routinely covered. "Judicial candidates are going to embark on a new way of life. The judicial conduct code curtails certain kinds of activities - will they be OK with that?"

Once the commission composes its list and forwards it to the governor, its role in that appointment is over. JSC members are under strict secrecy not to leak that list, which includes not informing applicants whether or not their names have been passed on to the governor. Hanna said this is inevitably frustrating for applicants. "People have gone on for months, not having a clue as to what was happening. Then, boom, they get a call to go see the governor, and then their nomination becomes public." Hanna has been so cautious about this part of the process that she never confirms the number of names submitted to the governor for a particular position.

Proud of the commission's leak-proof reputation, Hanna chuckled, "We would hear rumors about who was a nominee that were completely false. Very often when members of the commission heard who was rumored for a position, there was no basis in fact."

Hanna said that her experience in interviewing applicants, including some sitting judges, has given her a greater appreciation for how hard the job of being a judge can be. "The good judges are working hard. To sit on the bench at district court with all of those cases in front of you, working to mete out justice and to listen to everybody without getting bogged down - that can be physically and mentally very demanding," she said.

The commission still has work to do: It is accepting applications for a superior court vacancy and for justice of the Lancaster District Court. The applications are due Sept. 9, 2002.

JUDGES APPOINTED AFTER SCREENING BY JUDICIAL SELECTION COMMISSION

The following are the judges, justices, and special justices appointed since Governor Shaheen's executive order, dated June 30, 2000, established the Judicial Selection Commission.

2000

2001

2002

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