For SJC, Baker tends to favor smart, moderate judges

IF THERE WERE EVER an example of the enormous power of the governor, it is this: Gov. Charlie Baker, with his next two picks, will appoint the entire seven-member bench of the Supreme Judicial Court.

In a nearly unprecedented circumstance, Baker has appointed five justices since taking office in 2015, and the untimely death of Chief Justice Ralph Gants combined with the retirement of Justice Barbara Lenk mean he will now fill the court’s final two seats. That raises the question of what does Baker look for in a justice?

Given today’s race-conscious political climate, Baker is already coming under pressure to appoint a person of color to the bench. But legal observers say there are other ways in which the court needs diversity as well. The current justices mostly come from the criminal law world, leaving a dearth of knowledge of civil matters. Four of the five Baker-appointed justices were prosecutors, leading to calls to appoint a defense attorney or someone with a different background, like civil rights law or legal services.

“There’s no complaint at all about the genuinely excellent picks that have come so far, but they have come from generally one area of the legal world, and there is going to be a call that he have some diversity in the court from all areas of the legal world,” said Peter Elikann, a criminal defense attorney and former chair of the Massachusetts Bar Association’s criminal justice section.

Baker, asked about judicial nominees on Tuesday, said he had already been preparing to fill Lenk’s seat when she retires Dec. 1, a day before she turns 70, which is the mandatory retirement age for judges. Since Gants just died Monday, he said he needed a few days to think about next steps.

Baker said in 2016 that he has no ideological litmus test for appointees. “My goal is you put somebody on the SJC, you want to put somebody up there who is extremely smart, extremely capable, wildly well respected by their peers in the bar, and somebody who you believe will exercise the right judgment when it comes to the facts and the law when they make decisions,” Baker said then.

In the US Supreme Court, nominees tend to be chosen along partisan political lines. While presidents are not always successful, they try to pick justices who align with their political beliefs in areas like abortion and the role of executive power. Court decisions are often made by 5-4 votes, along party lines. In contrast, the Massachusetts Supreme Judicial Court has generally avoided that ideological split. Most decisions are made unanimously, with the justices discussing the issues and coming to a consensus.

Former SJC Justice Robert Cordy interviewed judicial nominees for years as former Republican governor Bill Weld’s legal counsel and as chair of the Judicial Nominating Council, which screens and recommends judicial appointments, in the late 1990s. In both positions, Cordy said, “ideology and politics were not part of the mix.”

With all recent Massachusetts governors, Cordy said, “You can see time and time again this pattern of looking for quality and experience and those…important qualities that make a good judge, rather than what their ideology is or might be, certainly not what their politics are.”

Often, judges have been appointed by both a Republican and a Democrat. Gants was appointed to the Superior Court by Weld and the SJC by Democratic governor Deval Patrick. Justice Fernande Duffly was appointed by Weld to the Probate and Family Court, by Republican governor Paul Cellucci to the Appeals Court, and by Patrick to the SJC.

Boston Bar Association President Marty Murphy, a partner at Foley Hoag, said the Judicial Nominating Committee is a nonpartisan group with a reputation for focusing on intellectual quality, work ethic, and “a reputation for treating people fairly and with integrity” when they screen judicial applicants.

There have been justices with a clear judicial philosophy. Lawrence Friedman, a professor at New England Law, gave the examples of Charles Fried, who served as solicitor general under President Ronald Reagan before his SJC appointment by Weld, and former SJC Chief Justice Margaret Marshall, who was appointed to the SJC by Weld and made chief justice by Cellucci. Fried had a conservative judicial philosophy, believing courts should do as little as possible and leave policymaking to the Legislature. In contrast, Marshall, who penned the landmark Massachusetts decision that legalized gay marriage, felt strongly that courts have a role in making law on issues of equality.

Baker himself is a moderate Republican who prizes bipartisanship and has generally governed in a centrist fashion. It is therefore unsurprising that his judicial nominees have not been political ideologues.

Friedman said Baker-appointed judges tend not to have obvious preconceived notions about judicial ideology. “It’s more difficult to tell with Baker’s appointments ahead of time which way they might lean,” Friedman said. “These are all moderate judges in the best sense of that word.”

The best way to determine what Baker wants in a justice is to look at the five justices Baker already appointed: Frank Gaziano, David Lowy, Kimberly Budd, Elspeth Cypher, and Scott Kafker. All are people Elikann describes as “superstars” or “first-rate heavyweights in the legal world,” those who excelled in their careers.

There are other commonalities as well. All five were judges before they were appointed to the SJC. While this is not surprising, other governors have chosen successful SJC judges with no judicial background, like Marshall.

Four of the five appointed by Baker were prosecutors. The only one who was not is Kafker, who worked for the Massachusetts Port Authority and for Weld.

“When I think about what a Gov. Baker-type looks like for the SJC, it’s those three characteristics I see – already a judge, a lot of past public service, and a balanced approach that’s generated a lot of respect among lawyers and their peers as judges,” Murphy said.

But this time Baker is likely to face pressure to broaden the diversity of the court. One need, several legal observers noted, is civil law experience on a court that is weighted heavily toward justices whose background is in criminal law.

Thomas Carey, an attorney at Hogan Lovells who argues regularly before the SJC, said Massachusetts intentionally has a system of generalist judges rather than judges who specialize in specific areas. But he said that makes it important for the court overall to have a breadth of knowledge across areas of law.

“The current court is heavily oriented toward people whose background is in the criminal law,” Carey said. “There’s some thought whether somebody with the breadth of knowledge in the civil area might be appropriate.”

Former SJC Justice Geraldine Hines said subject expertise can be important. When she was on the court, for example, she said the judges would look to Duffly, a probate and family lawyer, for guidance on family law cases.

Hines, who was appointed to the bench after a career in civil rights law, said one “glaring omission” to her in the present composition of the court is “somebody steeped in civil rights and civil liberties.”

“We’ve come to understand over the last couple of months how important that is in the way the law addresses inequities in society,” Hines said. “I think it’s going to be really, really important to bring somebody onto the court who is steeped in addressing inequities in our society, racial inequities and other kinds of inequities.”

There may also be pressure on Baker to appoint a defense lawyer, to balance out the large number of former prosecutors. But there is no evidence that the court’s rulings have been biased toward the prosecution. Gants, a former assistant US attorney, actually had a reputation for being progressive on criminal justice issues in a way more favored by defense attorneys.

But, Carey said, “if everybody up there has been a prosecutor, you begin to worry whether the perspective of criminal defense work is not being adequately reflected.”

The most obvious political pressure facing Baker at a time of a nationwide reckoning over race is to appoint a racial minority to the court.

Groups including the Women’s Bar Association, the Massachusetts Black Lawyers Association, the South Asian Bar Association of Greater Boston, the ACLU of Massachusetts, the Committee on Public Counsel Services, and others wrote to Baker urging him to consider appointing justices “with a wide range of lived experiences, diverse backgrounds ,and legal careers,” in particular those with a background in racial justice, civil rights, criminal defense, or legal services. “Having a judiciary that looks like the people of the Commonwealth who come before it seeking justice is important–adding significantly to both the experience of those being heard and the richness of the top-notch jurisprudence in Massachusetts,” the groups wrote.

So far, Baker has appointed one black woman, Budd, one gay white woman, Cypher, and three white men.

That stands in contrast to Patrick, who made a clear attempt to diversify a court that had previously been overwhelmingly white and male. Patrick nominated the court’s first black woman, Hines; its first Asian-American, Duffly; and its first openly gay justice, Lenk. Patrick’s nominees to the chief justice position included the first Jewish chief justice, Gants, and the first black chief justice, Roderick Ireland.

Baker may also face pressure to appoint a judge from Western Massachusetts, a region of the state currently not represented on the court.

As an attorney appearing before the court, Carey said he worries less about a justice’s background and more about whether they understand the law and legal process, whether they are willing to listen, whether they have courage to change the law, and whether they empathize with individual people affected by a case. “What is important to me is that the group you have share the sort of traits that are needed for good appellate judges, so I don’t look first at other things,” Carey said.

But Hines said diversity of race, gender, and background is important on the court because it affects legal interpretation. “Diversity matters because the law, the interpretation of the law, is influenced by one’s life experiences,” Hines said. “People think that the law is some neutral body of principles and rules and there’s only one way to think about how you solve problems according to the law, and it’s just not true that it’s the same no matter who interprets it.”

Hines points to a 2016 SJC decision she wrote finding that a black man running from the police may have reasonable grounds for doing so, to avoid the indignity of being racially profiled, and his flight alone cannot be used  as evidence of guilt. “I can’t imagine anyone else on the court understanding that reality except somebody like me who lives in Roxbury, who lived in Roxbury for the almost 50 years I’ve been in Boston, and has that experience with clients, with neighbors, with community groups that’s part of my lived experience,” Hines said.