Past and Prologue

Paul Mills

Earlier this month came the news that President Barack Obama will have the opportunity to name a new Supreme Court justice. This development puts focus onto the process by which this most crucial policymaking position is filled.

Choosing a person who may well decide a host of searing issues is a rare occasion in America. Because justices on the highest court serve lifetime appointments, vacancies are unusual. There were none from 1994 to 2005.

Though it is too early to tell what will unfold with Obama’s nominee, it’s time to compare this unusual and vital national decision with the process of choosing state Supreme Court justices, like those in Maine. But before doing so, let’s look at some of the Maine legal luminaries who have stood on the threshold of a Supreme Court appointment:

• Nathan Clifford: This former U.S. Attorney General was named to the court by President James Buchanan in l858. He served 23 years and presided over a commission that decided the outcome of the l876 presidential election. His specialties on the court were commercial, maritime and Mexican land grant issues. The Portland elementary school named for him has recently been in the news due to issues about the size and location of its replacement.

• Edward Gignoux: Stung by two successive Senate rejections of southern judges Clement Haynesworth and Harold Carswell, President Richard Nixon in 1970 determined to flee far from Dixie to capture a suitable Republican nominee. He narrowed his selection to Gignoux and Minnesota’s Harry Blackmun, who got the nod. Gignoux would be at least twice more considered for a high court vacancy, and though he was one of the most nationally acclaimed jurists Maine has ever produced, he would each time be passed over for the position.

• George Mitchell: Blackmun’s retirement in 1994 brought a Maine man to the forefront of another Supreme Court vacancy. As the Senate Majority Leader – and a former judge – Mitchell was President Bill Clinton’s first choice. Mitchell declined the proffered appointment on grounds the president’s health care reform package would be jeopardized without Mitchell’s leadership during the remaining 10 months of Mitchell’s term. Besides, if Mitchell were to resign, his interim successor would be appointed by a GOP governor, John McKernan. Mitchell stayed on, but was neither able to salvage the Clinton health care plan nor retain the Senate seat for a Democrat, which went instead to Republican Olympia Snowe.

Northern Ireland, the Middle East and the world at-large would have since become irreparably deprived of this Waterville native’s diplomatic genius, however, had not Mitchell’s miscalculations given rise to his renunciation of the Supreme Court appointment.

Maine Appellate Court Judges: How We Choose Them

Though a state appellate court is home to major policy decisions, selection of its members in Maine has ittle of the fanfare that accompanies its federal counterpart. For one thing, none of Maine’s appointed judges serve for life, even though the seven-year terms to which they are appointed are typically renewed without controversy. Still, all must leave the bench by age 70 to qualify for retirement benefits. (More than half our present U.S. Supreme Court would be ineligible by this reckoning.)

Maine is among only a dozen states where there is no direct voter participation in either the selection or retention of appellate judges. No television ads or bumper stickers proclaim the individual merits or the personal defects of a Maine Supreme Judicial Court justice.

A crucial turning point on the road to Maine’s present system was an amendment just over 30 years ago that instituted the present Legislative committee system of confirmation. Until 1977, confirmation of the governor’s Supreme Court choices in Maine was by an “Executive Council” of seven members selected by majority party legislators from each of seven districts. Clandestine horse-trading between the governor and council often ensued. Though gifted and qualified judges such as Sidney Wernick often emerged, the selection and confirmation methods did not instill public confidence.

The 1977 constitutional amendment replaced the council with the Legislature’s 13-member joint House and Senate Judiciary Committee. Popularly elected, rather than politically appointed, officials thus now vet judicial nominees. Because it takes a two-thirds Senate vote to upset the committee decision, it’s the committee that as a practical matter has the last word. The process also requires open public hearings.

A downside to the Maine system has been noted by esteemed State House political analyst Jim Brunelle. In a recent interview with this columnist, Brunelle observed that Maine’s method “Concentrates the power of confirmation in too few hands,” since, in effect, a mere seven-person majority of the Judiciary Committee can decide a nominee. Brunelle would prefer to entrust confirmation to a larger, more representative body.

Though unlike presidents Nixon and Clinton, President Obama has not considered a Maine judge for his appointment. Nevertheless, there is something about the process of choosing Supreme Court justicesthat Maine can teach other states and the nation: Fixed terms, mandatory retirement and avoiding spectacles of statewide popular elections offer a model that, despite drawbacks, might be worth emulating.

Paul H. Mills is a Farmington attorney well known for his analyses and historical understanding of Maine’s political scene. He can be reached by e-mail: pmills@midmaine.com.