Balancing independence and politics in judicial appointments

In his recent 3-Minute Civics column, Chris Pappavaselio highlighted the enduring influence that certain presidents have had on the composition of the United States Supreme Court. Both political parties have accused each other of trying to manipulate the court to counteract this effect.

Democrats cite Senate Republicans’ refusal to vote on President Barack Obama’s nominee Merrick Garland more than a year before the 2016 election, while confirming Amy Coney Barrett’s nominee for President Donald Trump less than six weeks was nominated ahead of the 2020 elections. Republicans, in turn, have criticized Democrats for proposals to expand the Supreme Court to counter the impact of Trump’s recent appointments.

In evaluating these positions, it is important to understand that the process of appointing federal judges was the result of a carefully crafted plan of separation of powers and checks and balances created by the drafters of the US Constitution. Well aware of the influence of politics on the nomination process, the Founding Fathers devised a system that ensured judicial independence from politics once a federal judge took the oath of office. Political machinations on both sides that manipulate the appointment process risk jeopardizing this independence.

One of the complaints cited in the Declaration of Independence against the King of England was that he deposed judges in America at will and paid colonial judges from the royal treasury. In the words of Thomas Jefferson, this made the judges “dependent solely on his will”. To protect the court system from such political pressures, the drafters included a provision in Article III, Section 1 of the Constitution that all federal judges “shall exercise their office in good conduct” and that their salaries shall not be reduced during their tenure.

Alexander Hamilton, James Madison, and others wrote a series of essays, now known as the Federalist Papers, urging voters to accept the Constitution. In Federalist #78, Hamilton addressed the importance of judicial independence. He expressed concern that without life tenure and the protection of their salaries, judges would be “in constant danger of being overwhelmed, intimidated, or influenced by the President and Congress.”

Despite these guarantees, the judiciary is not completely isolated from the political process. This was also intentional. Article II, Section 2 of the Constitution gives the President the power to appoint judges and gives him the power to confirm or reject judge nominations in the Senate. This process was also discussed in detail in the constitutional convention.

Some delegates wanted the power to appoint judges to remain with the legislature. Others wanted the President to have exclusive power to select judges. James Madison suggested involving the Senate in the nomination process because it was the branch of the legislature least subject to election postponements. Unlike the House of Representatives, where all members are elected every two years, senators serve six-year terms and only a third of them stand for election every two years.

The ebb and flow of party politics has influenced the appointment of judges since the country’s earliest days. After John Adams’ defeat by Thomas Jefferson in 1800, Adams nominated many Federalist judges for the court, and the Federalist-controlled Senate upheld this. One such appointment was Adams’ Secretary of State, John Marshall, who served longest as Chief Justice. At more than 34 years, he also has the fourth-longest tenure of any justice appointed to the Supreme Court.

Chief Justice Marshall presided over many landmark decisions. He reaffirmed the primacy of broad national authority over state rights and recognized the Supreme Court’s power to void federal laws when they conflict with the Constitution. While both of these concepts are accepted as doctrinal truth today, this was not a foregone conclusion in the nation’s early days.

Jefferson supported state sovereignty and disagreed with Marshall regarding the court’s power to declare federal statutes unconstitutional. Jefferson felt that judicial review violated the ability of the President and Congress to set the limits of their own constitutional authority. We can only guess how different our constitutional history would have been if Jefferson, and not Adams, had been appointed Chief Justice in 1801.

The rule of law depends on the stability of legal interpretation. In the words of Hamilton, indefinite tenure of judges is “the best expedient . . . to ensure the consistent, honest and impartial application of the law.” Once a judge is appointed, a judge can make decisions without considering the next election. The isolation of the judiciary from political pressures caused by the regular cycle of electoral politics means that the political party responsible for appointing a judge does not necessarily predict that judge’s vote on specific issues.

Richard Nixon advocated the appointment of justices who would adhere to a strict or narrow construction of the Constitution to counter the Supreme Court’s so-called liberal agenda under Chief Justice Earl Warren. Judge Harry Blackmun, the author of Roe v. Wade, initially voted with the more conservative judges in more than 80% of the cases. By the end of his term, Blackmun was coordinating nearly 100% of the cases with his Liberal colleagues, Justices William Brennan and Thurgood Marshall.

Ronald Reagan-appointed conservative Justice Antonin Scalia authored a ruling that revolutionized the constitutional right to confront witnesses in court and resulted in comprehensive protections for criminal suspects. New Hampshire’s own Justice David Souter frustrated Conservative hopes after his appointment by George HW Bush. More recently, Justice Neil Gorsuch, a Donald Trump nominee for the Supreme Court, interpreted the Civil Rights Act of 1964 to provide full protections against discrimination in the workplace for LGBTQ people.

Just as Supreme Court judges can disappoint the party responsible for their appointment, they incite the wrath of the opposing party when it comes to power with rulings declaring popular legislation unconstitutional. By protecting judges from political vacillations, our court appointment process allows the court to control electoral excesses and creates space for judges to interpret the law without worrying about the impact of their decisions on the next election.

Lawyers and judges love footnotes, so I can’t help myself. In New Hampshire, we do things a little differently than the federal government and other states. The judges are appointed by the governor. The Executive Board must then decide, after a public hearing, whether to accept or reject this nomination. In this respect, the process is not dissimilar to the federal system. But unlike federal judges, state court judges do not serve for life. They must retire at age 70, meaning they are insulated from electoral pressures but have some tenure limit.

New Hampshire is just one of three states (Rhode Island and Massachusetts are the other two) in which judges are not subject to election or a vote by the legislature or the governor and council to retain the judge after a set term of years or to reappoint. New Hampshire judges can only be removed by impeachment or by a process called a bill of address, in which the legislature reviews misconduct charges and votes on the judge’s acquittal or removal. In this way, state judges retain their independence.

At the same time, the system guarantees a regular change of judges. Therefore, in a system like New Hampshire’s, political leaders need not guess when a Supreme Court Justice like 83-year-old Stephen Breyer will retire, or whether anyone in office as Justice Scalia and Justice Ruth Bader Ginsburg will die recently Did.

(Will Delker was appointed NH Superior Court in 2011 and currently sits at Hillsborough County Superior Court – Northern District in Manchester.)

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