During last night’s Republican presidential primary debate, Mitt Romney blamed an obscure pre-colonial body – the Massachusetts Governor’s Council – for his failure to appoint more conservative judges when he was governor.
The comment cast a rare light on the little-known elected body, but it offered a misleading take on the role of the governor’s council in vetting judges, according to several attorneys either involved in nominating process, or close observers of it.
“I’ve never seen a level of direct partisanship” in the council, said Martin W. Healy, chief Legal counsel to Massachusetts Bar Association. “There might be questions about people’s views about mandatory sentencing and that sort of thing.”
Asked during the debate why only one fourth of the judges he appointed were Republican, Romney cast the council as an obstruction to conservative agenda.
“They go before something known as the Governor’s Council,” Romney said. “It consists of, I believe, seven members, all of whom are elected Democrats. And so to be able to get my appointments through, I had to have people of both parties. And the people I put forward, all were individuals who I vetted very carefully to make sure they would follow the rule of law.”
In fact, the Governor’s Council has nine members, including the lieutenant governor, who was a Republican under Romney, but not always counted by observers as a regular member of the council. The other members were Democrats during his administration. The council, under the state constitution, approves the governor’s appointments to judgeships and certain other posts.
The body is often maligned and even mocked, more because of its members’ sometimes strange antics than any partisan agenda.
The council is not known to vet judicial candidates based on party affiliation. At most, and especially more recently, members ask about political donations in hopes of preventing patronage. In addition, the council seldom rejected applicants during Romney’s tenure.
David W. White Jr., a past president of the Massachusetts Bar Association said the council was “absolutely not” concerned with party affiliation when Romney was governor.
“The Governor’s Council historically has accepted the nominations of the judicial nominating commission and the governor when they’re made and it’s only something extraordinary that would cause them to turn down an applicant,” he said.
Romney was known for seeking prosecutors and other attorneys considered pro “law and order,” and was usually successful in sitting them on the bench. He never had a vacancy on the Supreme Judicial Court, which would have been his best chance to make an ideological mark on the courts.
Romney’s first chief legal council, Daniel B. Winslow, who served from 2002 to 2004, established a non-partisan process for vetting judges through the Judicial Nominating Commission that was touted as a national model, because the primary application was judged blindly. That meant name, race, gender, and party affiliation, were not known during the initial review. Party affiliation was never a consideration, he said.
“People with political agendas really aren’t suitable for judgeships,” said Winslow, a former district court judge who is now a Republican legislator from Norfolk.
Winslow said that during the two years he served in the administration, the major reason Romney had few Republican appointments was a result of the talent pool.
“The fact is that there simply aren’t a lot of conservative lawyers in Massachusetts who were available for judgeships,” he said. “The pool of applicants was very low in many respects.”
Near the end of Romney’s term, in 2006, that he stripped the Judicial Nominating Commission of many of its powers, allowing his administration to put a more direct stamp on the judiciary, as he prepared to run for president.