Bar Weighs in on Future Makeup of SJC
By Christina Pazzanese
In the wake of Chief Justice Margaret H. Marshall’s surprise announcement that she will retire in October, the talk in legal and political circles now is who will lead the Supreme Judicial Court and who is likely to be tapped to fill the vacancy left by Marshall’s departure.
Many judges and lawyers say with the shock of Marshall’s retirement news just beginning to wear off, it is still too early to point to any clear-cut frontrunners for the chief justice post in what is expected to be a very careful and tightly controlled selection process.
“I really think the field’s wide open,” said Martin W. Healy, general counsel and acting executive director at the Massachusetts Bar Association.
“No one really knows,” said retired Judge Suzanne V. DelVecchio, former chief justice of the Superior Court. “[The governor] doesn’t even know yet.”
William “Mo” Cowan, chief legal counsel for Gov. Deval L. Patrick, said while his boss is aware of the “robust parlor game” going on over Marshall’s replacement or who may join the SJC, Patrick has only just returned from visiting the troops in the Middle East and begun to discuss a plan to identify and consider nominees. Consequently, Cowan, said, it would be “premature” to talk about which candidates may have the best shot.
“Finding or identifying someone who can easily step into her shoes is a difficult task,” he said, adding that Patrick will be “respectful” of the fall timeframe Marshall set for her departure.
As with Patrick’s prior appointments to the SJC, the Judicial Nominating Commission will be involved, and the governor also intends to seek the advice of previous chief and associate justices, Cowan said.
The upcoming election will have “no impact” on who gets chosen, he added.”Whoever is nominated should be and will be subjected to a robust nomination process by the governor and the Governor’s Council,” he said. “The process is not – shall not – be a political process.”
‘Known Quantities’
Most expect the governor will follow tradition and take the “safer” route by selecting the new chief justice from the ranks of the associate justices, rather than risk rocking the boat with an outsider.
“They know how the court works and what the problems are, and they are able to get on the job without a steep learning curve,” said former SJC Justice John M. Greaney, whose retirement in 2008 created the court’s last vacancy.
“They’re known quantities. Their legal opinions are well known so there’s no mystery,” Healy said.
DelVecchio said Justice Roderick L. Ireland is a likely contender since he has the most seniority, has “very real credentials,” enjoys widespread respect in the legal community and, if chosen, would be the state’s first African-American chief justice, an “historic” choice on par with Marshall’s groundbreaking 1999 appointment as the first woman to helm the court.
Healy concurred that the opportunity to make history with Ireland could be a factor, while Justices Margot G. Botsford and Ralph D. Gants’ status as previous Patrick nominees also put them squarely in the running. Justice Robert J. Cordy’s role as a Marshall confidant and his active participation in court administration also mean he “shouldn’t be overlooked,” he added.
By choosing the chief from within, the governor gives himself “more flexibility” to select an associate justice outside the courts, perhaps one from academia or private practice, Healy said.
Douglas K. Sheff, vice president of the Massachusetts Bar Association and a former president of the Massachusetts Academy of Trial Attorneys, said while there are certainly good reasons to pick either Botsford or Ireland, Gants has the combination of intellect, temperament and social skills that the chief’s job demands.
“A lot of judges are very bright, but they don’t have the kind of common sense Judge Gants has,” Sheff said.
And with the continued economic crisis rocking the courts, having a leader who can effectively twist arms on Beacon Hill like Marshall has been able to do is vital.
“If I’m in a street fight, I think I’d want him next to me,” Sheff said of Gants. “And this is a street fight.”
Political Considerations
All agree that Patrick has a tough task in front of him, not only to fill the real leadership void Marshall leaves at what is a very difficult juncture for the state courts, but to make two key judicial appointments to the state’s highest court as a tough three-way gubernatorial election heads into the home stretch.
Court watchers say Patrick’s choice for the next associate justice will be the bigger political gambit of the two selections and the one most likely to shake up the court.”
Certainly what is going to be important is the next person appointed to the court to fill the vacancy,” DelVecchio said. “They’re going to do some real heavy thinking on this.”
With the governor’s desire for a diverse bench a frequently referenced ambition, Greaney suggests either an African-American or Latino judge could get the nod, or someone from a scholarly background, like Harvard Law School Professor Charles Fried, who served on the SJC from 1995 to 1999.
Healy said though there are a number of “outstanding” Appeals Court judges to choose from, Judge Peter J. Rubin, a former constitutional law professor at Georgetown University Law Center who founded the American Constitution Society for Law and Policy, and Judge Cynthia J. Cohen, who came to the bench from private practice at Boston’s Meehan, Boyle & Cohen, could be in the mix.
Both were believed to be on the short list of candidates Patrick considered two years ago before elevating Gants, a former Superior Court judge.
Healy said given the stormy political climate in the state right now, as well as the significance of an appointment to the SJC, engaging the JNC to assemble a list of names for both the chief justice and an associate justice should help blunt any criticism from opponents that the picks are inappropriate or politically motivated.
“It allows the governor to say they’ve constituted a commission of talented members of the legal community” to advise on the selections, Healy said. “That does help in terms of showing the public there was somewhat of a process here and that issues were looked at.”
In a July 22 conference call from Kuwait, Patrick said he was looking for someone with “touch.” Cowan said the governor meant that he favors judges who are “respectful and cognizant” that many litigants who come before them are unfamiliar or “not engaged in” the judicial process regularly.
By the time Patrick’s first term ends in December, three of the seven justices will be Patrick appointments. If re-elected in November, Patrick would get at least one and perhaps two opportunities to make an appointment to the SJC. Justice Judith A. Cowin, 68, is mandated to retire in April 2012, and Ireland, now 66, is due to retire in December 2014.
“That’s quite a legacy for any governor to leave,” Healy said.
