Jury is out on way state picks judges

CONCORD – The latest round of state judicial nominations has been one of the most contentious in recent memory.

Few of the people involved or watching seemed pleased with the process, and many were disappointed with the results.

The five members of the state’s Executive Council have little or no agreement about how to do things better the next time, however.Picking judges is serious business. Judges often make life-altering decisions for the citizens who come before them. Once appointed, they serve until they retire, and they can be removed only by impeachment through the state Legislature – a rare and difficult process.

“These votes we cast for judgeships are the most important we do,” said Councilor Ray Burton of Bath, who represents the North Country.

The process is political by design. The state constitution gives the governor and Executive Council the authority to appoint “all judicial officers,” as well as the attorney general and officers of the state navy and militia. Governors nominate candidates, and the Executive Council votes them up or down.

Beyond that, every administration has found its own way to handle judicial appointments. As recently as 10 years ago, Burton said, the Executive Council didn’t even conduct public hearings on nominees.

“Back in those days, we jokingly called the selection of judges ‘robe fitting,’ ” Burton said.

Most of the time, the process works fine, said Judge Edwin Kelly, chief justice of the state’s district courts.

“The process that exists now has been in place for hundreds of years, and has produced excellent judges,” Kelly said. “There’s no doubt about that.”

Too little screening

Kelly said the “major flaw,” however, is a lack of any formal screening or review process before candidates are nominated. That leaves too much emphasis on political connections and too little on merit and qualifications, he said.

“I think there needs to be a much more deliberate and considered process,” Kelly said. “The fact is that right now there is no process. At least as far as I can tell, there has been no selection investigation on any nominee” in the most recent round of six.

“Clearly the council doesn’t have the ability to do that, given that they don’t have a staff. That is clearly not the fault of the Executive Council. They have done what they are supposed to do.”

Several councilors agreed the recent round of nominations – made after Gov. Craig Benson has lost his bid for re-election – was rushed, and one suggested it came down to pure patronage. All of them, however, said they are confident the council is up to the task of vetting judicial nominees.

“There’s no question that this last batch we had came in a hurry, without the usual amount of consideration from local communities, making appropriate background checks,” Burton said.

Traditionally, governors have chosen a group of lawyers and other people to advise them. Former Gov. Jeanne Shaheen set up a selection committee to suggest candidates for judicial positions, and Benson appointed a smaller screening committee to review his suggestions early in his administration.

Benson’s selection committee consisted of Plymouth attorney Gerard Boyle, state Sen. Sheila Roberge of Bedford, state Rep. Henry Mock of Jackson and, at one point, the governor’s own lawyer, Chris Reid.

Benson used his judicial selection committee mainly to consider nominations to higher courts, not district courts, according to his spokeswoman Alicia Preston, but Benson believes all his nominees were well qualified.

Benson’s previous nominations were generally applauded, or at least uncontroversial. They included elevating Richard Galway from the Superior Court to the Supreme Court, promoting Robert Lynn to chief justice of the superior courts and hiring Franklin District Court Judge Edward Thornton Jr. and Portsmouth District Court Judge Sawako Gardner.

Last month, however, apparently in a rush to fill vacancies before leaving office, Benson nominated six people for various district court judge positions – including one post that no longer existed.

Four of the five remaining proved controversial, and the governor withdrew one nominee when it became clear he couldn’t muster a majority on the council. The council approved all four remaining nominees – including Boyle, now a Concord District Court judge – on Dec. 1, despite various concerns raised during a lengthy public hearing on Nov. 24.

Some critics argue Benson should leave important posts for Gov.-elect John Lynch to fill, but Benson has waved off the idea. There are posts to fill and plenty of qualified candidates, so it would be wrong not to act, Preston said.

“I think you’ll find that every outgoing governor in modern history has done nominations to different posts as they’re departing,” Preston said. “In the state of New Hampshire, you’re elected to office for two years, not one year and 10 months.”

The public hearings before the Executive Council serve to screen judicial nominees, Preston and councilors said.

“The process calls for public hearings,” Preston said. “The public has the opportunity to voice their opinions.”

A council divided?

In hindsight, however, Councilor Peter Spaulding of Hopkinton, who represents the Concord area, said it isn’t clear the public hearings proved a meaningful part of the process.

Spaulding voted against two of the nominees, along with Councilor Ruth Griffin of Portsmouth, who represents the Seacoast region. The other three councilors – Burton, David Wheeler of Milford and Ray Wieczorek of Manchester – all supported each of Benson’s nominees.

Spaulding said he got the impression afterward that Burton and Wieczorek had agreed to support each other’s favorite candidates for judicial and other posts.

“There seems to have been a deal made,” Spaulding said. “If the fix was in . . . it made a mockery of that public hearings process, and I wasted an entire day.

“This deal that apparently some of the councilors made . . . is just unconscionable. And what it does is it leads to bad appointments.”

Burton and Wieczorek deny their votes were the result of any such deal.

“The Executive Council did its job very thoroughly,” Burton said. “All five councilors set aside Nov. 24, the day before Thanksgiving . . . and we listened to 90 different people testify on the nominations. I took each one by one.”

“I look at the person’s credentials, see what they’re going to bring to the job,” Wieczorek said.

Wieczorek said he saw no serious flaw in the process, and that it isn’t the council’s place to tell governors how to make nominations.

“We do get a lot of information. . . . We do our homework,” he said. “When the nomination comes to us, that’s when we go to work.”

Wheeler, who had backed Milford attorney Marc Coro, one of the most controversial of the nominees, said he found the hearings unfair, saying allegations against Coro’s character and competence amounted to mudslinging. Wheeler said he believes Mont Vernon lawyer John Coughlin declined Benson’s nomination for the open Nashua District Court post mainly for fear he’d be subjected to similar scrutiny.

Most councilors agreed some form of selection or screening process seems to produce better nominees for them to consider.

“The governors that I have served with, starting with John Sununu, all had some sort of screening process,” Griffin said.

Political cover

Wheeler argues Shaheen’s method delegated too much authority to her selection committee, and he and Spaulding agreed the committee served largely to give the governor political cover.

“If everything goes well, you take the credit; if anything goes wrong, you blame the selection committee,” Wheeler said.

“I prefer the way Governor Benson did it,” Wheeler said. “We got a lot of information with Governor Benson. I didn’t get anything with Governor Shaheen, other than a resume.”

Reports from the state Professional Conduct and Judicial Conduct committees are helpful, councilors agreed, but it can be hard to make sense of the information, Spaulding said.

“I welcome assistance from the Bar Association or other groups” in evaluating candidates, he said.

In some years, the New Hampshire Bar Association, which represents all lawyers, has formed a committee to screen judicial candidates. The panel interviews candidates and their co-workers, and reviews work product and any other available records. Although thorough, that process is confidential and results only in one of three recommendations: qualified, qualified with reservations or not qualified.

Wheeler stressed he wouldn’t want to lean too hard on the bar.

“Their input is always welcome, but they should have an arm’s length in the process,” he said. “We don’t want a judiciary run by the trial lawyers.”

While the Legislature could require governors to use some sort of screening process for nominees, Burton said lawmakers likely have too many other, higher priorities to consider it anytime soon.

More drastic changes, such as term limits for judges, would require a constitutional amendment, making it all the more unlikely, Burton said.

“I’ve always found the people of New Hampshire to be very sensitive about amending the constitution,” he said.