Impeachment a tale of eroding checks, balances

I want to thank Attorney Gregory M. Sorg, my colleague in the bar of our state, for his response to my article, “New Hampshire’s Impeachment Crisis of 2000” in the March 16-29 issue. Attorney Sorg has given us the benefit of his years of experience as a law practitioner in the Franconia area and as a former member of the General Court. His comments provide us with a valuable opportunity for a conversation about judicial independence and accountability in our state.

While I am a resident of Manchester and a longtime member of the New Hampshire and Massachusetts Bars, my own professional experience has been very different from his.

From 1974 until my retirement at the end of 2013, I worked as a lawyer for the National Center for State Courts, a nonprofit charged with improving judicial administration in the United States and around the world.

When Attorney Sorg mentions “the so-called ‘judicial modernization’” in New Hampshire, he is referring to our state’s experience with a national court reform movement led before World War II by Dean Roscoe Pound of Harvard, President and Chief Justice William Howard Taft and American Bar Association President Arthur Vanderbilt. That movement came to dramatic fruition across the country after World War II, as the late Robert W. Tobin wrote in his book, “Creating the Judicial Branch: The Unfinished Reform” (1999).

In 1966 and 1978, the people of New Hampshire agreed that our state should take part in that movement, when they approved amendments that became Articles 72-a and 73-a of our state constitution.

At the same time, there were nationwide movements to modernize the executive and legislative branches of state government. There were numerous efforts to modernize those branches in New Hampshire, but our citizens rejected such efforts time and time again.

Before the amendment in 1966 granting constitutional recognition to the Supreme Court and Superior Court, the General Court had constitutional power to create or abolish any court in the state by simple legislative enactment. In fact, it did so five times with New Hampshire’s highest court in the 19th century.

Attorney Sorg asserts that this was done in response to judges’ improper “shenanigans.” Yet his argument is not supported by other commentators, who explain those 19th century judicial restructuring efforts primarily in terms of partisan political conflict and opportunities for patronage appointments, with no reference to judicial behavior.

By “firing” the judges of the state’s highest courts, New Hampshire legislators were exercising a power that was considered impermissible under the U.S. Constitution and that of every other state in the country. In fact, New Hampshire was the last state in the country to grant constitutional recognition to its highest court, 178 years after statehood!

I agree emphatically with Attorney Sorg that there must be suitable means to assure accountability so judicial independence does not violate separation of powers and the kinds of checks and balances needed to assure that government officials act in a manner that protects and defends our rights as citizens.

The Brock impeachment of 2000 served as an unusually painful “wakeup call” to New Hampshire judges and legislators. In that respect, it also served as a critical juncture for the commencement of what Tobin would call “the next reform phase” for courts, involving sustained attention to citizens and elected officials in other branches of government to assure public trust and confidence in the judiciary as it protects citizens’ rights and promotes the rule of law.

Since the impeachment events in 2000, there have been successful efforts by legislators and judicial leaders to assure judicial accountability while maintaining judicial independence. These efforts include judicial appointments by governor and council with the aid of a judicial “merit selection” body; a program of ongoing performance evaluation for all judges and marital masters; and the development of a more open and transparent judicial discipline process to assure that individual judges comply with established standards of judicial ethics.

Again, please let me express my gratitude to Attorney Sorg for offering us his ideas about “the rest of the Brock impeachment story.” Continuing a valuable conversation about judicial independence and accountability, I hope that my comments here will help us all reach a deeper understanding of what was at stake in that story.

David C. Steelman is co-author, with John Cerullo, of the book, “The Impeachment of Chief Justice David Brock: Judicial Independence and Civic Populism,” an excerpt of which was published in the March 16-29 NH Business Review.