Statement of Chief Justice Walter L. Murphy of the Superior Court before the House Subcommittee on Judicial Selection and Retention

October 4, 2001

There is no greater threat to the independence of the New Hampshire Judicial Branch than the proposal to amend the constitution to impose term limitations on judges. The institution of term limits for judges goes against the very grain of the state which proudly proclaims as its motto, "Live Free or Die", as it is for the protection of the people’s rights to have their issues litigated by judges who are "as impartial as the lot of humanity will admit." As Article 35 of the state constitution articulates: "…it is not only the best policy, but for the security of the people" that judges hold their offices so long as they behave well. As Alexander Hamilton so aptly put it in the Federalist papers, "…adherence to the rights of the Constitution and of individuals indispensable to the courts of Justice, can certainly not be expected from judges who hold their offices by a temporary commission." Likewise, in providing life tenure for federal judges under the United States constitution, John Adams said of judges that "their minds should not be distracted with jarring interests; they should not be dependent upon any person or body of persons.

Lifetime tenure is not in place to protect judges; it is for the protection of the people.

A promise was made by the late Chief Justice Frank Kenison of the New Hampshire Supreme Court that the judiciary of this State "… will continue to maintain its House of Justice for the humble as well as the powerful, for the poor as well as the rich, for the minority as well as the majority, and the unpopular as well as the popular."

Decisions of a court of law must not be based upon what is popular or unpopular at the moment, nor what the media thinks, nor what politics might dictate, nor by the fear that one’s position might be lost as a result of a judge’s determination.

Specifically, I am concerned about the quality of persons who would be willing to dedicate their lives to public service as a judge if he or she is not assured that his or her position would not be lost because of some political interests which oppose a decision made by the judge. When an established attorney accepts judicial office, she gives up the opportunity to earn significantly more money in private practice, which less persons will be willing to do if their continuation in office could be in jeopardy after a term of seven or ten years.

I worry about having two separate categories of judges, those with life tenure and those without and the attempts on the part of some litigants or their counsel to shop for a judge who might be more sympathetic to a person’s cause because of perceived public sentiment. I worry about those judges whose appointments are coming up for review being able to withstand the pressure of the process, or who might be tempted to evade the tough issues by referring the "hot potato" case to a colleague who is not up for renewal. I worry that judges might be inclined to look over their shoulders to test the winds of public opinion rather than objectively apply the law. I worry that those who are supposed to rule objectively and fairly might have their thoughts elsewhere such as currying the favor of a particular litigant or law firm in which he or she may take refuge in the event that his or her term of office is not renewed. I also worry that the public may misconstrue the rationale behind judges’ decisions, and sense that the decision was made, not as a result of considered judgment, but as a result of inappropriate influence.

One only has to look at the history of this nation to discern many instances in which the popular sentiment of the times, the majority public opinion, was at odds with reason. In Salem in the seventeenth century, hundreds of people, mostly women, were burned at the stake because of suspected witchery. Nor is more recent history in this country lacking in such examples: persons of color not being able to vote, attend public schools, or ride in public transportation, against a backdrop of murders, lynching, and church bombings, all in the name of what the majority perceived as racial superiority. Thanks to an independent judiciary, that is federal judges with lifetime appointments, those dark days are a thing of the past. One doesn’t have to wonder much if the results would have been the same had the judges considering the civil rights issues of the 1960’s been subject to a review process after their initial term of office. It is obvious from these lessons of the past that judges should be free from the popular pressures of the moment and that their decisions should be made without regard to the popularity of the decision.

My worries are not personal, as any changes will not affect my term of office; but they should be the concerns of all the citizens of the State as it is their right to an impartial judiciary which will be affected. A judge should have no personal interest in the outcome of any litigation. The only way to ensure that judges are free from outside influence is to maintain lifetime tenure which has withstood the test of time over the past two plus centuries. Please consider any proposed change with extreme caution, as the rights, not of the judges themselves, but those of your constituents, the people of this state, hang in the balance.

There are those among you that claim that the public demands change; it is up to us all to see to it that the public is fully informed of all of the consequences of the efforts to initiate this type of proposal. Among those consequences is a loss of an independent judiciary so vital to their rights as citizens to be tried by judges as free from influence as humankind admits.