What makes a good judge? N.H. lawyers weigh in

While most New Hampshire lawyers interviewed agree on the traits it takes to make a good judge, which traits they see as most important varies from attorney to attorney and the emphases differ.

With President George W. Bush having just made his second Supreme Court nomination in a little over two months, and with Gov. John Lynch now having the opportunity to nominate a successor to retiring Justice Joseph Nadeau on the New Hampshire Supreme Court, NHBR Daily asked several prominent lawyers around the state exactly what qualities they think are important in a judge.

“A significant experience as a practicing lawyer,” said Manchester attorney John P. Shea. “A few years under their belt — and humility. And by that I mean, someone who doesn’t think he or she is the smartest one in the room, because there’s almost certainly someone out there who’s smarter.”

Shea also said he appreciates someone who demonstrates an “ability to quickly grasp the facts of a case and who doesn’t make snap judgments.” On the other hand, judges don’t need to let cases sit on the vine until they ripen like grapes for Paul Masson wine. “Let’s get the decision out,” said Shea. “Don’t let it sit on your desk for a year.”

As Shea sees it, an impressive resume is nice, but a resume can only show you so much. “The three things I would look for are — do they work hard, do they organize well and do they have common sense? Where they went to law school doesn’t even make the list.”

Nor does it matter much to Shea if a candidate for a high judicial position does not, as in the case of U.S. Supreme Court nominee Harriet Miers, have any experience as a judge.

While it’s true that a lawyer, as advocate for one side of a case, takes a highly selective and biased view of the facts, he or she must, as an officer of the court, respect the process. And the process is designed to get at the truth of the matter.

“I figured out a long time ago that a jury trial is about what the jury believes to be the truth. It’s not going to be obvious to the judge and the jury what the truth is. That’s my job, to persuade them that the facts in my favor outweigh the facts on the other side.”

Albert “Buzz” Scherr of Franklin Pierce Law Center in Concord also said he believes that experience as a trial judge may be helpful, but not necessary for a Supreme Court justice. He noted that many of the luminaries on the U.S. Supreme Court, including Earl Warren, William O. Douglas, William Rehnquist and John Marshall, had never sat on the bench before joining the high court. He does think it important, however, that the court, as a whole, have members of varied backgrounds.

“Republicans tend to think corporate lawyers are the best lawyers and the smartest lawyers because they make the most money,” he said.

But many extremely bright and talented lawyers have spent years or decades as public defenders or as legal services counselors, representing clients who would otherwise have little or no access to the courts. Yet not one member of the current U.S. Supreme Court fits that description.

“Ruth Bader Ginsburg has done some public interest work on women’s issues,” but aside from that, none of the current justices has any experience in representing individuals or classes of people with grievances against the established order, Scherr said. Nor is there any real criminal trial experience to speak of on the existing court.

“It irks me when I see something written about the Miranda law, for example, by people who have never been involved in a criminal trial” as prosecutor, defense attorney or judge, Scherr said.

A justice on the Supreme Court, either state or federal, has a different role than a trial court judge, he noted.

“A judge on the highest court, of necessity, settles policy questions” that lower courts must follow, he said, adding that he values an open mind, a sound analytical mind and an ability to apply lessons of real-life experience into common-sense applications of the law as traits that are important for a judge at any level.

With understandable institutional pride, Scherr noted the nomination by former Democratic governor Jeanne Shaheen of former Franklin Pierce professor and acting dean James Duggan for the high court in 2000 as an example of an unconventional choice that resulted in a different perspective added to the state’s top court. In addition to his academic background, Duggan had been founder and for many years director of the appellate division of the state’s public defender program.

Following the rules

But some lawyers, especially those of a conservative bent, are leery of choosing law school professors for high judicial posts. Manchester attorney Ovide Lamontagne, for example, notes that most law school faculties are dominated by liberal professors who he thinks would be likely to have an agenda to advance from the bench.

“I would want to be assured that the candidate or nominee respect the limited role of the judiciary in applying the law to the facts and essentially understanding that if it’s not in the Constitution or in the statutes, they ought not try to legislate it. It becomes a matter for the legislature and the executive and the people to decide.”

Criminal defense lawyer Cathy Green of Manchester acknowledged that judicial activism can be a problem, but suggests it is difficult to define. The perceived activism of one generation can become the time-honored precedent of the next. She noted, for example, that the Miranda rule and other once-controversial procedural requirements established by the Warren Court in the 1960s seem to be working to everyone’s advantage today.

“People know what the rules are, so everybody can play by the same rules,” she said. That, in turn, encourages a healthy respect — but not a fetish — for precedent.

“Precedent is extremely important,” she said. “But Brown v. Board of Education teaches us the lesson that sometimes precedent needs to be revisited,” she added, referring to the 1954 unanimous finding of the Warren Court that racially segregated schools are inherently unequal and therefore unconstitutional. – JACK KENNY

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