I previously posted about Governor Sununu’s nomination of Bobbie Hantz Marconi to the New Hampshire Supreme Court, likening it to President George W. Bush’s nomination of Harriet Miers.
The Executive Council, which must confirm the nomination, will hold a “public hearing” on the nomination. Unlike hearings before the United States Senate, where a finite number of witnesses are called by each Party, the “public hearing” held by the Executive Council allows any member of the public to speak.
This makes hearings on judicial nominees before the Executive Council essentially a farce. Judges should not be nominated based on their popularity with the public, but based upon criteria I discussed in a prior post: (1) Judicial Philosophy (2) Intellectual capacity (3) Experience (4) Integrity and (5) Demeanor.
Here are two questions the GOP Executive Councilors should ask the nominee, but probably won’t.
First, what takes priority when a decision of the supreme court is not consistent with the original understanding of the constitutional provision upon which the decision is based: maintaining precedent or interpreting the constitutional provision to mean what its ratifiers understood it to mean?
Second, should statutory interpretation be limited to giving reasonable meaning to the words of the statute, when read in context, or does it also involve determining “legislative intent” from extra-textual sources such as “legislative history”?
Also, “I am going to apply the law to the facts” or variations on that theme is an evasion, not an answer. It’s how the judge determines what the law is that matters.
The questions above, if properly followed up on if the nominee attempts to evade, would help understand whether this nominee or any nominee will interpret the law based on factors such as his or her personal preference for policy or outcome, or whether the nominee would see his or her role as saying what the law is, not what he or she thinks it should be.