Commentary

3-Minute Civics: Judicial appointments – balancing independence and politics

January 14, 2022 5:45 am
A giant banner of the preamble to the Constitution

People unfurl a giant banner printed with the preamble to the U.S. Constitution during a demonstration at the Lincoln Memorial on the National Mall on Oct. 20, 2010, in Washington, D.C. (Getty Images)

This story was updated on Jan. 14 at 7:59 a.m.

In his last 3-Minute Civics column, Chris Pappavaselio highlighted the enduring impact certain presidents have had on the makeup of the United States Supreme Court. Both political parties have accused the other of attempting to manipulate the court to counteract this effect. Democrats cite the refusal of Senate Republicans to vote on President Barack Obama’s nominee, Merrick Garland, for more than a year before the 2016 election, while confirming Amy Coney Barrett, who was nominated by President Donald Trump less than six weeks before the 2020 election. Republicans, in turn, have criticized Democrats for proposals to increase the size of the Supreme Court to counteract the influence of Trump’s recent appointments. 

In evaluating these positions, it is important to understand that the process for the appointment of federal judges was the result of a carefully crafted plan of separation of powers and checks and balances created by the framers of the U.S. Constitution. The Founding Fathers were keenly aware of the influence of politics on the appointment process and designed a system that ensured judicial independence from politics once a federal judge took the oath of office. Political machinations from either side which manipulate the appointment process risk jeopardizing that independence.

One of the grievances against the King of England, cited in the Declaration of Independence, was that he removed judges in America at will and paid colonial judges from the royal treasury. In the words of Thomas Jefferson, this made the judges “dependent on his will alone.” 

In order to shield the court system from such political pressure, the framers included in Article III, Section 1 of the Constitution a provision that all federal judges “shall hold their offices during good behavior” and that their salaries could not be reduced during their tenure. Alexander Hamilton, James Madison, and others wrote a series of essays known today as the “Federalist Papers” urging voters to adopt the Constitution. In “Federalist No. 78,” Hamilton addressed the importance of judicial independence. He expressed concern that without life tenure and protection of their salaries judges would be “in continual jeopardy of being overpowered, awed, or influenced” by the president and Congress. 

Despite these safeguards, the judiciary is not completely isolated from the political process. Again, this was by design. Article II, Section 2 of the Constitution gives the president the power to nominate judges and vests the ability to confirm or reject judicial nominations in the Senate. Even this process was subject to extended debate during the Constitutional Convention. Some delegates wanted the power of appointing judges to rest with the legislature. Others wanted the president to have exclusive authority to select judges. James Madison proposed the Senate be involved in the appointment process because it was the branch of the legislature least subject to frequent electoral shifts. Unlike the House, in which all representatives are elected every two years, senators serve six-year terms and only one-third of them are up for election every two years.   

The push and pull of partisan politics exerted its influence on judicial appointments from the earliest days of the country. Following John Adams’ loss to Thomas Jefferson in 1800, Adams nominated, and the Federalist-controlled Senate confirmed, many Federalist judges to the court. One of those appointees was Adams’ secretary of state, John Marshall, who served as the longest chief justice. He also has the fourth longest tenure of any judge appointed to the Supreme Court, clocking in at more than 34 years. 

Chief Justice Marshall presided over many landmark decisions. He upheld the supremacy of broad national powers over states’ rights and recognized the power of the Supreme Court to declare federal laws invalid when they conflicted with the Constitution. While both of these concepts are accepted as doctrinal truth today, it was not a foregone conclusion in the early days of the nation. 

Jefferson supported state sovereignty and disagreed with Marshall on the power of the court to declare federal statutes unconstitutional. Jefferson felt judicial review infringed on the ability of the president and Congress to determine the limits of their own constitutional authority. We can only guess how different our constitutional history may have been if Jefferson, rather than Adams, had made the chief justice appointment in 1801.

The rule of law depends on the stability of legal interpretation. In the words of Hamilton, the permanent tenure of judges is “the best expedient . . . to secure a steady, upright, and impartial administration of the laws.” Once a judge is appointed, a judge can make decisions without an eye on the next election. The insulation of the judiciary from political pressure caused by the regular cycle of electoral politics means that the political party responsible for the appointment of a justice is not necessarily predictive of that judge’s vote on particular issues. 

Richard Nixon campaigned on appointing judges who would adhere to a strict or narrow construction of the Constitution to counteract the so-called liberal agenda of the Supreme Court under Chief Justice Earl Warren. Justice Harry Blackmun, the author of Roe v. Wade, began by voting with the more conservative justices more than 80 percent of the time. By the end of his tenure, Blackmun voted with his liberal colleagues Justices William Brennan and Thurgood Marshall almost 100 percent of the time. Ronald Reagan-appointee and conservative icon Justice Antonin Scalia authored a decision that revolutionized the constitutional right to confront witnesses at trial, resulting in broad protection for criminal defendants. New Hampshire’s own Justice David Souter frustrated the hopes of conservatives after his appointment by George H.W. Bush. In more recent times Justice Neil Gorsuch, a Donald Trump selection to the Supreme Court, interpreted the Civil Rights Act of 1964 to afford sweeping protections for LGBTQ individuals against workplace discrimination.

Just as Supreme Court justices can disappoint the party responsible for their appointment, they raise the ire of the opposing party when it takes power with rulings declaring popular legislation unconstitutional. By protecting justices from political swings, our judicial appointment process allows the court to act as a check on electoral excess and creates space for justices to interpret the law without having to worry 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 bit differently from the federal government – and other states. 

Judges are nominated by the governor. The Executive Council must then determine whether to accept or reject that nomination after a public hearing. In this way, the process is not unlike 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 election pressures but have some limit on their tenure.

New Hampshire is one of only three states (Rhode Island and Massachusetts being the other two) where judges are not subject to either election or a vote by the legislature or governor and council to retain or reappoint the judge following a fixed term of years. New Hampshire judges may be removed only by impeachment or through a process called a Bill of Address where legislators consider charges of misconduct and vote to either acquit or remove the judge. In this way, state judges retain their independence. At that same time the system guarantees a regular turnover of judges. Therefore, under a system like New Hampshire’s, political leaders are not left guessing when a Supreme Court justice, like 83-year-old Stephen Breyer, will choose to retire or whether someone will die in office as Justice Scalia and Justice Ruth Bader Ginsburg recently did.

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N. William Delker
N. William Delker

Will Delker was appointed to the New Hampshire Superior Court in 2011 and currently sits in Hillsborough County Superior Court-Northern District in Manchester.

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