"The candid citizen must confess that, if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." — A. Lincoln,
First Inaugural Address (Mar. 4, 1861).

In order to fulfill its obligation to perform constitutional checks and balances on other branches of government, the Hew Hampshire legislature notified the NH Supreme Court that it would resume its legislative performance review of the Supreme Court’s administrative procedures.

The performance review began before the court and the legislature became embroiled in the impeachment proceedings of last year. Due to the sensitivity of those proceedings, the review was suspended so as to not to give the appearance of bias during the hearings. The constitution requires in at least two instances that the people, through their legislature, needed to keep the other branches accountable and determine the "good behavior" of judges who are appointed for life.

Because we have no judicial term limits, there is a general misconception among the public that judges here are appointed for life. That is NOT the case. Judges are appointed for as long as they exercise "good behavior." The founders of our Constitution certainly didn't intend for us to just appoint judges for life and forget them and let them go and do anything they want and be totally unaccountable.

The form of "term limits" we have in our Constitution is the restriction that they can remain judges as long as they "behave well" and what constitutes "good behavior" is subject to the interpretation of the people at any time. Their terms would then be "limited" by impeachment or address by the legislature. Other states can simply wait and either not elect them or appoint them again if they encounter "bad behavior."

It is important to stress that a performance audit would not be a wide ranging one. The audit is narrowly tailored to answer the following question: Do current court management practices and the management practices of the Administrative Office of the Court promote efficient and effective operations? The legislature has clearly stated that the audit does not intend, nor would the legislature permit, "an inquiry into the process by which the court reaches substantive decisions on cases". But establishing policy and ensuring that the taxing power is conducted wisely is "a core function of the legislature".

But the New Hampshire Supreme Court has again gone into a "circle the wagons" mode. They have sent a letter to the legislature that they object to a performance audit and will agree only to a fiscal audit. Anyone who has ever been in business knows that a full audit considers more than mere numbers. It considers the administrative procedures from which those number result. An administrative "performance audit" is just such an audit.

The legislature will meet with the court to discuss the court's concerns. Failing to agree with those concerns, the committee will proceed. It will be interesting if the Legislative Budget auditors knock on the door of the Supreme Court only to be turned away -- while the cameras roll.