New turn in debate over judges for life

In an extremely rare move, New Hampshire is attempting to impeach one of its supreme court justices, raising deep questions about judicial oversight and how judges are selected.

Members of the state House Judiciary Committee recommended impeaching Chief Justice David Brock late Wednesday night, and the full House is expected to take up the three articles of impeachment next week.

But beyond the halls of the State House, legal experts say this situation encapsulates the controversy surrounding the appointment of judges for life.

While federal judges receive lifetime appointments, only three states - New Hampshire, Massachusetts, and Rhode Island - grant them. Almost 90 percent of state judges face some kind of election, even if it's a simple retention vote.

Chief Justice Brock is accused of calling a lower-court judge about a case involving a powerful state senator, attempting to influence a fellow justice's divorce case, and then repeatedly lying when asked about the accusations.

Now, as New Hampshire moves to reform its selection process, the case is being seen nationwide as a new touchstone in the debate over election vs. appointment.

"This is the biggest argument in American law in the history of the country," says Roy Schotland, a professor at Georgetown University Law Center in Washington. "It has caused more fighting and ... more speechifying than anything else."

The issue weighs judicial independence against public accountability. Generally, the appointed system ensures independence, but must have a strong discipline and conduct mechanism. The electoral system insures accountability, but can sometimes result in less-qualified judges on the bench.

Getting the best judge

While he calls the New Hampshire case "astonishing," Mr. Schotland says the appointed system, for the most part, produces a higher quality of judge.

"In an electoral system, you can get a dreadful selection to the bench that is not likely with the appointed system."

Up until last week, New Hampshire was the only state in which judges were nominated by the governor with no formal public review ahead of time and no periodic, public evaluation or reappointment process afterward. Gov. Jeanne Shaheen changed that when she created a judicial-selection commission, which will recommend candidates.

This will also help ensure quality judges and put an end to the old boys' network, Schotland adds.

Under the US Constitution, the only way to bounce a federal jurist is through the impeachment process. But it is almost never used because it is so lengthy and cumbersome, says Seth Andersen of the American Judicature Society in Chicago.

Even Thomas Jefferson, when faced with the task in 1804, admitted the process is tricky. "The business of removing Judges by impeachment is a bungling way," he wrote during the proceeding of District Court Judge John Pickering of New Hampshire, who was accused of immoral behavior, being a drunk, and following odd procedures.

Only a dozen judges have been impeached in the country's history. The federal system saw a string of impeachments during the 1980s. Three US district judges were removed: Nevada Judge Harry Claiborne in 1986 (the first in 50 years), and Florida Judge Alcee Hastings and Mississippi Judge Walter Nixon in 1989.

The current case came to light in February, when a court clerk overheard Brock asking for former Justice Stephen Thayer's opinion about the appointment of an appeals panel in Mr. Thayer's divorce case.

The clerk reported the conversation to the attorney general, who found many other examples of ethics violations by the court. But committee members voted not to impeach or even reprimand two other justices who were accused of initially failing to blow the whistle on Thayer and also of participating in cases they were supposed to be disqualified from.

Under the state constitution, the role of the House is to investigate whether there are grounds to impeach a judge, and it's the Senate's role to hold a trial and, if convicted, decide a punishment.

The impact of the impeachment process in New Hampshire has resonated around the country.

"Other states have begun to ask: What's happening in our state and how do we handle it?" says Richard Hesse, interim dean of the Franklin Pierce Law Center in Concord, N.H.

Throw them out

Outside the federal system and the Northeast, most judges under suspicion are simply voted out in the next election. One of the most famous cases is that of former California Chief Justice Rose Bird, who was thrown out by voters in 1986 after she reversed more than a dozen death sentences for a purportedly defective jury instruction.

In addition, every state has a judicial-conduct commission that can sanction a judge with anything from a simple reprimand to dismissal. These are normally the bodies that enforce the state codes of judicial conduct, which cover everything from financial disclosure to campaigning to the judge's family.

While a certain amount of scandal is tolerated - and even expected - in other branches of government, Mr. Andersen says, "scandal has a particularly corrosive effect on the judiciary because judges are held to that higher standard. They are supposed to be impartial."

Indeed, polls show that the public holds judges to a far higher standard than the other branches of government.

"Most judges believe and behave by the admonition that they have to be purer than Caesar's wife," says Mr. Hesse. "But the public is unrealistic in its perception that judges are not subject to the same foibles ... as the rest of us."

(c) Copyright 2000. The Christian Science Publishing Society

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