On this July 4th, we were reminded of our country’s birth and the early civics lessons of our founders. Benjamin Franklin, at the time of the Constitutional Convention, is credited with teaching that the republic is ours — if we can keep it. He cautioned that our nation survives only so long as we, the people, cherish and preserve its institutions.
The Executive Council will have the chance, when it votes on the nomination of Attorney General Gordon MacDonald to serve on the New Hampshire Supreme Court, to affirm or whittle away at the independence of our courts.
When he appeared before the council, MacDonald was questioned about his political engagement as a private citizen. One would think civic engagement is a good thing. But three on the Executive Council appear to be taking a different tack. By their questioning and public comments, they suggest that MacDonald’s political engagement warrants forcing him to agree that on future yet-to-be-filed cases he will decide as they perceive the “right” way. Any judicial candidate who made such a wrongheaded bargain would violate the canons of professional ethics. Worse yet, such an approach imposes a litmus test that elevates partisan politics over the rule of law.
As trial lawyers who practice in New Hampshire’s courts and as past presidents of the New Hampshire Bar Association, we have a keen interest in a fair and independent judiciary. MacDonald’s obvious qualification for office, however, is not what compels us to write. We write because we are concerned to see the judicial selection process devolve to a place where questions about perceived political predilections masquerade as an examination of a candidate’s merit. A judicial selection process that penalizes civic engagement and demands promises about future rulings is fundamentally flawed.
New Hampshire’s Constitution requires that judges be nominated by the governor and confirmed by the Executive Council. Picking the right person to serve as a Supreme Court justice is a consequential task. Once selected, a justice serves until the constitutionally mandated retirement age of 70.
How does one go about the task of selecting judges who best fulfill the role of protector of the rule of law? There is no one answer or certain recipe for success. That said, there is a wrong way to go about it. It is fatal to the process to insist upon a judicial candidate’s promise to decide a particular way, on a particular issue, in the future. Court proceedings cannot be fair and impartial when the “fix is in” before a case arises, is developed factually in the trial court, briefed and argued. While it might be politically expedient for one party to secure such a promise, assuredly the other party will demand a similar “fix” when political winds shift. No longer is justice based on the law, but instead on political might.
Past efforts to scuttle a judicial nomination based on prior civic engagement or perceived political leanings have proved an unreliable measure. Recall the nomination of David Souter to serve as an associate justice of the United States Supreme Court. He was castigated as someone who would end reproductive freedom for women. Soon after his confirmation, however, Justice Souter joined the plurality in Casey v. Planned Parenthood, reaffirming the essential holding in Roe v. Wade. History has shown that Justice Souter ruled based on the law as he saw it, not according to hyperbolic predictions surmising his personal political leanings. Had Washington succumbed to partisan politics and rejected Justice Souter’s nomination, we would have been poorer for it.
It appears that three executive counselors intend to plunge New Hampshire into such an ill-advised practice. Justice Souter, in discussing the importance of civic engagement, noted that Franklin’s famous quotation underscores “that a republic can be lost. . . . It can be lost by citizens who lack the understanding to feel responsible for preserving the power of the constitutional government they have.” A judicial selection process that uses past civic engagement as an excuse to extract political promises about future cases renders our courts a political play thing. Such a process erodes confidence in the independence and fairness of our courts. It also assuredly will deter some of the best and brightest from seeking to serve on the bench.
We hope the Executive Council will provide a civics lesson that rejects political litmus tests and confines itself to the merits. That would be a worthy lesson.