Instead of Outsourcing the Selection of Judges, Here’s How Chris Sununu Should Do It

As I discussed in the prior post, Governor Chris Sununu has announced the creation of a Judicial Selection Commission.  Unfortunately, the mission and composition of the commission indicate that Sununu has no intention of draining New Hampshire’s judicial swamp.

More particularly, the commission’s mission –which is to recommend judges based on “experience, good character and temperament” without considering judicial philosophy– and its composition –the Republican Chair was an activist-judge while the Democrat Vice-Chair helped select liberal, activist judges for prior Governor Maggie Hassan– mean the commission will not be trying to identify and recommend outstanding originalist/textualist (terms that will be discussed below) judges like the late Antonin Scalia.

I have no problem with using a commission to select judges, but to the extent that Sununu wants to appoint judicial conservatives (i.e. originalists/textualists) like Scalia to New Hampshire’s bench, Sununu’s commission represents an outsourcing of the power to nominate judges that will result in the nomination of judicial liberals.

The commission should not be “bipartisan.”  It should be nonpolitical.  Democrats by and large believe that the role of the judiciary is to effectuate social transformation -for example, inventing constitutional rights such as the right to an abortion and ignoring constitutional rights they disagree with, such as the Second Amendment- and to use empathy as a criteria for deciding cases -for example, ruling against the big, bad corporation even when the law is on the big, bad corporation’s side.  Stated more succinctly, Democrats believe the judiciary should function as a House of Lords that assists Democrats in realizing their political objectives.

I am not saying that all Democrats should be excluded or that any Republican can serve.  Rather, the criteria that a judicial selection committee should use is set forth below, and only persons who would consistently and rigorously apply this criteria and who have the capacity to apply this criteria should be on the commission.

1.  Judicial Philosophy.  Only candidates whose judicial philosophy is based on originalism and textualism should be recommended.  Simply put, a judge who is NOT an originalist/textualist is a judge who to some degree substitutes or adds his or her own policy preferences for or to what the law says.

Textualism refers to the interpretation of statutes.  A textualist interprets statutes based on the reasonable meaning of the words in the statute, without considering material outside the statutory text such as “legislative intent.”  In other words, textualism is based on the concept that we are governed by the laws a legislature actually passes, not what a judge thinks the legislature thought it was passing or what a judge thinks the legislature should have passed.

Originalism is the application of textualism to constitutional provisions.  It recognizes that constitutions by their nature cannot contain the same type of detail as statutes, so constitutional provisions should be interpreted expansively, rather than narrowly.  An example is interpreting the First Amendment to protect flag-burning because flag-burning while not technically speech has the same purpose as speech criticizing or denouncing America or some aspect of America.  However, an expansive interpretation does not mean an unmoored interpretation, such as interpreting a duty to cherish public schools to mean a judicially enforceable right to an “adequate” curriculum (adequacy to be determined ultimately by the judiciary) and to “adequate” State spending on public education (adequacy again to be determined ultimately by the judiciary).

2.  Intellectual capacity.  Being an originalist/textualist is not a mechanical exercise.  Consider the question discussed above of whether flag-burning is protected by the First Amendment.  Or whether mandating that everyone purchase a health insurance policy falls within the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  Or whether a statute providing an enhanced penalty for the use of a firearm in the commission of a crime applies to a barter involving a gun for cocaine.  In addition to having the capacity to determine the meaning of complicated statutes and the scope of constitutional provisions that may be hundreds of years old, the judge must be able to apply the law to novel or complex facts.  And the judge must be able to write an opinion that allows the other branches and the public to understand that the judge reached the correct result.

3.  Experience.  Our State Constitution was adopted in 1784 and the number of judicial decisions interpreting it is legion.  There is also a multitudinous number of statutes and regulations.  There is also common or judge-made law, such as the law of negligence.  There are also various rules of procedure.  Judicial nominees need a familiarity with this vast legal framework.

4.  Integrity.  The nominee should NOT be someone who will “grow in office,” which is a lovely euphemism for becoming a liberal, activist judge in order to please a press and a bar that is largely hostile to judges who practice originalism/textualism.  A candidate with a paper trail showing that he or she adheres to a judicial philosophy based on originalism/textualism suggests that he or she will be less likely to bow to the prevailing political winds if placed on the bench.

5.  Demeanor.  Judges must conduct themselves in a way that gives the other branches and the public confidence that the decisions they reach are based on the law and solely on the law.  For example, a judge declaring “Black Lives Matter” in open court as Judge Robart -the federal district court judge that struck down President Trump’s travel ban- did in a case in which he sided against a police union is not.

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