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Bar News - February 18, 2011

Hours Add Up for Talent Scouts of the Bench


Judicial Selection Commission members, from left, Philip Waystack, James Rosenberg, Kathy Beebe, Kathleen Brown, Emily Rice, Anna Barbara Hantz, Elliott Berry, and Alex Scott. Not pictured: Jack Middleton, Art Nichols, Kristie Palestino
Emily Rice, co-chair of the Judicial Selection Commission, last year spent 30 days, including 22 full days of interviews, screening judicial applicants for Gov. John Lynch.

This past year was an especially busy for the 11-member commission, created in 2005 by an executive order, as it filled a Supreme Court position, a superior court position, and several district court posts. The group has been busy throughout the past six years, helping Gov. Lynch make 21 judicial appointments during that time span. More of its work will bear fruit soon – any day now, the governor is expected to make additional nominations to fill some of the five vacancies on the superior court.

Philip Waystack, the Colebrook attorney who is in his second stint on a Judicial Selection Commission (he served on a similar committee created by Gov. Shaheen), praises his fellow commission members for their generosity and public spirit. "We’re very fortunate to have such a gifted, intelligent, articulate group putting in such significant amounts of time to conduct this function for the state," he said.

Much is demanded of the judicial applicants – each applicant submits 11 copies of the eight-page application and supporting materials. The application, among other things, asks for:
  • writing samples, such as a motion brief or legal article;
  • detailed information on career and public service activities;
  • contact information and other details about the candidates’ three most recent cases and similar information on his/her five "most significant" cases.
Judges Screened
by Gov. Lynch’s
Judicial Selection Commission

Supreme Court
Gary E. Hicks
Carol Ann Conboy
Robert J. Lynn

Probate Court
Peter G. Hurd

Superior Court
Kenneth C. Brown
Diane M. Nicolosi
Brian T. Tucker
Peter H. Bornstein
Jacalyn A. Colburn
David A. Garfunkel
Richard B. McNamara
Marguerite L. Wageling

District Court
M. Kristin Spath, Concord
Edward M. Gordon, Franklin
Mark F. Weaver, Hampton
Edward J. Burke, Keene
James M. Carroll, Laconia
John C. Emery, Manchester
James H. Leary, Nashua
Michael J. Ryan, Nashua
Daniel M. Cappiello, Rochester

Once the applications are received, the commission members get to work, sifting through the detailed applications, conducting interviews in person or by phone to gather information from the past cases listed by the applicants. Waystack checks with the attorney discipline office; Rice checks for criminal and driving records. The commission members then gather to share their findings and then set aside full-day sessions packed with candidate interviews. Waystack makes the coffee. Rice brings the pastries.

Waystack said that he is pleased by the cooperation the commission has received from lawyers, judges, other professionals and the public in sharing their opinions of the judicial candidates and protecting the confidentiality of the process.

Based on criteria enumerated by the ABA, Waystack says the commission considers these factors to determine candidates’ suitability for the bench: legal knowledge, integrity, judicial temperament, trial experience, and diligence.

"We look for well-rounded individuals," Waystack says. "Most applicants have some sort of community or public service on their resumes. A very smart, capable lawyer without significant public service – an applicant like that would be unusual for us to see," he says.

The listing of past cases is an important resource – the most significant cases indicate the level of expertise or "gravitas" of the applicant, and the recent cases provide an opportunity for the commission members to receive assessments of the applicant from sources not "hand-picked" by the applicant. Almost always, opposing counsel and judges in these cases are contacted. "Many cases are contentious, we know that," Waystack says. "What we are looking for are ethical, hard-working people. What can the opposing counsel or judges tell us about their potential temperament as a judge?"

Sometimes applicants have "bumps in the road" – attorney discipline complaints or other issues in their past. Such incidents don’t necessarily disqualify someone from consideration. "Were there misconduct findings? No findings, but a warning – that might lead to questions in the interview."

Also prominent in the interview is a variety of "what if" questions that represent potential scenarios candidates would encounter on the bench. "We are not looking for right or wrong answers, but to have a conversation and see how the candidate would make decisions in tough situations – among the most difficult are criminal sentencing questions. We want to see how they process the issues; we want to get them to think out loud. It’s a test to think about big issues and articulate a position under a time pressure."

Looking back on his experience dating back to when he served on the commission for Gov. Shaheen, Waystack says two factors have become more prominent in the interviews: the role of self-represented litigants and how judges should handle them, and funding issues confronting the courts. We are asking how we can better deliver services with the same or fewer resources?"

Rice, the co-chair, says that it’s important for applicants to be sure they understand what’s involved in the application process and what’s involved in becoming a judge.

Waystack says that an inherent difficulty with the process for applicants is that there can be a long span of time between when they are interviewed (if they get that far) and when the governor announces his nominations to the Executive Council. Once the Judicial Selection Commission submits a short list (Waystack and Rice won’t say how many names are on the list for any position) to the governor, the process is out of their hands.

No one is notified whether they made that short list, and the governor’s choice isn’t made public until the governor has met with a nominee and then submitted his or her name to the Executive Council.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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