Whose advice should governor take on judges?
While the New Hampshire Executive Council was asking the state Supreme Court for an advisory opinion on the constitutionality of the 2001 law governing succession of chief justices, some New Hampshire lawyers and other legal observers were wondering about the status of a commission established to make recommendations to the governor for filling judicial vacancies.
Kathy Sullivan, a Manchester attorney and chairman of the New Hampshire Democratic Committee, recalled the Judicial Selection Commission was an 11-person board established by executive order of Gov. Jeanne Shaheen. What, if anything, Gov. Craig Benson intended to do with it was still a mystery.
“If he has not issued an executive order rescinding Governor Shaheen’s executive order, than he has to use that commission,” said Sullivan, who, as party chair is a frequent and vocal critic of Benson.
The commission, made up of lawyers and laypersons, was created to find, recruit and screen applicants for judgeships and present the governor with a list of the most qualified candidates for each position. A governor unsatisfied with the names presented may instruct the commission to come up with a different slate of candidates. Under the terms of the order, however, the governor may not nominate anyone not recommended by the commission.
“It is quite remarkable that Governor Shaheen was willing to give up (that) prerogative,” said Manchester attorney Katherine Hanna, chair of the commission. “It’s been a political plum in the past, no doubt about it.”
The commission was nearly established by an act of the Legislature in 1975, when Hanna, then a young member of the New Hampshire House, sponsored the legislation and saw it passed by both chambers. But Gov. Meldrim Thomson vetoed the bill, saying that whatever the merit of the concept, the act of the Legislature was “contrary to the clear intent of the Constitution, specifically Part II, Article 46, which gives to the Governor and Council the power to nominate and appoint all judicial officers.”
Shaheen’s executive order was issued on June 30, 2000, after the resignation of Associate Supreme Court Justice Stephen Thayer, under investigation by the state’s attorney general for alleged legal and ethical violations, and charges of improper conduct against Chief Justice David Brock. The two matters created a crisis on the state’s highest court. Knowing of Hanna’s longtime interest in such a commission, Shaheen named the Queen City Democrat to head the panel. Over the next two years, the commission served the governor in filling 15 District Court, 5 Superior Court and one Supreme Court vacancy.
But since Craig Benson became governor in January, there had been no communication from the governor’s office to the commission, despite a number of District Court vacancies, two recent Superior Court openings and the vacancy that will occur at the Supreme Court when Brock’s recently announced retirement becomes effective on Dec. 31. Hanna said she has had inquiries from potential candidates about some of those vacancies. About six months ago, she placed two calls to Chris Reid, then the governor’s legal counsel, but neither call was returned, she said.
Though three members had resigned, Hanna said the commission was still intact and could act quickly enough to help the governor meet his goal of filling that Supreme Court vacancy by Dec. 31, if called upon to do so.
But Colebrook attorney and commission member Phil Waystack said if the commission still existed, it no longer had any members.
“Nobody’s been reappointed,” said Waystack, noting that he and the other members of the commission were each appointed for a period of three years, meaning the appointments all expired this past in June. Waystack also is unsure what standing, if any, the commission might have.
“If a governor institutes an executive order and nobody ever withdraws it, what does it mean? Maybe Governor Benson will appoint a new commission,” he said.
By the end of the week after Brock’s announcement, Benson had appointed a three-member committee to review candidates for the Supreme Court position. Benson appointed Reid, his former legal counsel, House Judiciary Committee Chair Henry Mock, R-Jackson, and State Sen. Sheila Roberge, R-Bedford. Wendell Packard, the governor’s press secretary, said Benson would formally rescind the executive order that established the previous commission.
“I think every governor wants to make good appointments,” said Waystack, a political independent. “I think the difficulty is that if you don’t have a grassroots process, a particular governor’s exposure to appropriate candidates is probably not as broad as the net the Judicial Selection Commission would cast.”
State Rep. Tony Soltani, R-Epsom, a member of the House Judiciary Committee, thinks the judicial selection process has long been a matter of cronyism.
“Qualifications have nothing to do with whether someone is appointed as a judge,” said Soltani. “It’s purely political. It’s a matter of what is your pedigree and to whom are you connected.”
“Usually English language sayings don’t come about by accident,” said attorney Paul McEachern, a Portsmouth Democrat who served as legal counsel to Gov. Hugh Gallen in the late 1970s. “And there’s an old saying that a judge is a lawyer who knows a governor. That’s not a coincidence.” Yet McEachern said he was not a fan of the Judicial Selection Commission.
In the past, he said, governors would have potential nominees screened by the board of governors of the New Hampshire Bar Association, often before the choice was made public. Judd Gregg abandoned that process during his two terms as governor (1989-93).
“The bar has used that very judiciously,” said McEachern. “They haven’t used it to do anybody in or do a litmus test. There have been a few incidents where they checked out a potential nominee and found some things that would have been embarrassing to the appointing official, namely the governor. Everybody was able to walk away from it, including the potential nominee, with his reputation intact. There were no fingerprints left anywhere.”
But Hanna said she doesn’t “think the system that has been used in the past has been bad. It’s brought us some very good judges. The way I would put it is, we could do even better. When my father (George Hanna of Keene) passed the bar 50 years ago, there were 300 lawyers in New Hampshire. There are now 5,000 lawyers in New Hampshire. It is increasingly difficult for any one governor to know the pool of talent that is out there.”
As a result, there is a tendency to overlook potential nominees who are eminently qualified, but are not politically connected. Hanna cites as an example Associate Supreme Court Justice James Duggan, whom Shaheen nominated from among candidates recommended by the Judicial Selection Commission. Duggan had been for many years a professor of law at the Franklin Pierce Law Center in Concord and was founder and director of the Public Defenders Appellate program.
“He has said publicly that he was very surprised and didn’t think he could ever be considered because he had no political ties,” said Hanna.
Executive Councilor Peter Spaulding said he believes the commission was no less political than other means that have been used to pick judges.
The Hopkinton Republican described the panel as “political cover for Jeanne Shaheen, and it was run by (Shaheen’s legal counsel) Judy Reardon. I know very qualified attorneys who never even got interviewed.” Spaulding said he would advise the governor “use your own judgment (with) a close confidante to help you. I’m not impressed with the committee Shaheen had.”