Over eight years, former Governor Deval Patrick effectively reshaped the state’s judiciary and its very top rung, appointing five new Supreme Judicial Court justices, many of them groundbreaking picks.
Yet, quietly — and quickly — Governor Charlie Baker is poised to surpass not only Patrick’s influence on the state’s highest court, but that of any governor in nearly five decades.
With Justice Barbara A. Lenk set to retire on Aug. 17, Baker will make his sixth nomination to the seven-person bench in a little over four years, widening the Republican’s stamp on the oldest continuous sitting appellate court in the Western hemisphere.
His latest pick comes while an intensifying debate over social justice and how to address systemic racism is coursing through the country, and in Massachusetts is fueling calls from nearly a dozen legal groups for Baker to “meet the challenge of this moment.”
And he’s facing pressure not just to offer a pick expanding the court’s racial diversity, but its legal make-up after four of his last five nominees were one-time prosecutors.
Who Baker is considering, and exactly when he’ll announce his choice amid the coronavirus pandemic and a cratering economy, is unclear. Baker formed a 13-member commission that includes his chief legal counsel Robert Ross, former SJC Chief Justice Roderick L. Ireland, and attorney Paul Dacier to vet and recommend choices, signing the order less than a week before he declared a state of emergency amid mounting COVID-19 cases.
His office has not offered a timeline, beyond saying he’s under no “compulsory” deadline to make a pick.
But that looming decision will land amid shifting ground.
Lenk — a Patrick nominee, white woman, and the court’s first openly gay jurist — is leaving a court where five of its six remaining justices are former prosecutors. And it’s predominantly white: Justice Kimberly S. Budd, a Black woman and a Baker nominee in 2016, is the only person of color.
“We are cognizant in the legal profession that we must focus on diversity and inclusion, especially in the private sector. But we can’t forget about the public sector,” said Stesha A. Emmanuel Laborde, president of the Massachusetts Black Lawyers Association and an attorney at McCarter & English. “Diversity cannot be reflected just as the entry. It must be at the top.”
Over its 328-year history, the Supreme Court has had just three Black justices, 10 women, and no Latinos, making the selections under Patrick all the more notable.
The Democrat named five members to the court, and tapped two chief justices who made history: Ireland was the bench’s first black chief justice, and current chief Justice Ralph D. Gants is its first Jewish one. Justice Geraldine S. Hines was the high court’s first black woman, Justice Fernande R.V. Duffly its first Asian-American, and Lenk, its first openly gay jurist.
Elspeth “Ellie” B. Cypher, nominated by Baker in 2017, is its second. Three of Baker’s five appointments were white men: Frank M. Gaziano, David A. Lowy, and Scott L. Kafker.
But with Lenk’s departure, it will leave Gants as the only current jurist not nominated by Baker, and provide the governor the opportunity to be the first chief executive since Francis W. Sargent, who held office between 1969 and 1975, to tap six new high-court justices while in office.
“I think it’s a myth that people interpret the letter of the law devoid of many of their life experiences. You don’t write on a blank slate,” Hines told the Globe. A civil rights attorney and appeals court judge before her 2014 appointment, Hines reached the mandatory retirement age of 70 in 2017.
Eleven groups, including the Women’s Bar Association, the ACLU of Massachusetts, and Greater Boston Legal Services, are urging Baker to think more broadly about his selection, including considering someone with a background in racial justice, civil rights, criminal defense, or legal services.
Anthony Benedetti, a letter co-signer and chief counsel for the Committee for Public Counsel Services, said the state’s public defenders office is also hoping for a justice that has worked with poor clients, someone “who has fought for those who have the least.”
And defense attorneys are hoping Baker looks beyond the crop of lower-court judges and prosecutors who have dominated SJC selections.
“It’s missing a person who is really one of the top 5, 10, 20 private practice lawyers in Massachusetts who spent their entire career swimming in the waters of private practice,” said John Pucci, a partner at Bulkley Richardson and Gelinas, LLP and who served on Baker’s judicial commission in 2016, when Baker made three appointments.
Otherwise, he said, “you’re missing the opportunity to add somebody who can freshen the pot.”
Maura Driscoll, a Baker spokeswoman, said in a statement that the governor “will continue efforts to support a culture of diversity throughout both the Commonwealth and its courts.”
But she did not address questions of whether the commission has offered any recommendations. The group’s deliberations are considered confidential, said Martin W. Healy, the chief legal counsel of the Massachusetts Bar Association and a commission member.
Identifying diverse candidates is a challenge in itself. A steering committee created by the SJC reported last year that attorneys of color are “under-represented” in the state bar, but noted it’s difficult to “address diversity and equity issues without demographic data” on who makes up the state’s legal profession.
“Sadly in Massachusetts, it is very difficult to find a deep pool of racially diverse candidates for these challenging, difficult, prestigious jobs precisely because of the structural racism that is built into the whole legal community and feeder system,” said Lisa Goodheart, who chaired the state’s Judicial Nominating Commission under Patrick and was involved in recommendations for each of his SJC selections.
“We haven’t made the progress we should have,” she said.
Baker’s selections across the judiciary, at least to date, have not reflected the state’s demographics, highlighting a challenge even Patrick struggled with.
Of Baker’s 34 appointments to the Superior Court, six of them — about 18 percent — “identify as diverse,” his office said, though it’s unclear how many are racial minorities. About 21 percent of the state’s population identify as Black or Latino. And of Baker’s 156 total appointments to the judiciary, 45 percent have been women, who make up 52 percent of the state’s overall population.
Forty-four percent of Patrick’s 190 appointments were women, while 17 percent of his picks were members of minority groups, the Globe has reported.
As a body, the SJC “seems be more to the right than ever before,” said Stephen J. Weymouth, a criminal defense attorney who expressed frustration with the court’s unwillingness to speed the release of inmates amid the pandemic.
But others point to decisions they say reflect the court’s progressive reputation. In 2016, shortly after three Baker appointees joined the court, it ruled that Black men may have a reason to flee police, citing data that they are disproportionately targeted for stop-and-frisks.
Hines nodded to a 2019 ruling that jurors can’t be disqualified because they believe that the legal system is unfair to Black men as a “racially forward-thinking” decision. And in 2017, the court issued what was believed to be the first ruling in the country forbidding local authorities from holding a person who is wanted solely for immigration violations.
Still, in finding Lenk’s replacement, there are other considerations, attorneys say. Lenk, who turns 70 in December, often did the “heavy lifting” on the court’s most complex civil cases, said Goodheart, a partner at Sugarman Rogers Barshak & Cohen.
Lenk also brought to the bench both a Harvard law degree, and a doctorate from Yale University in political philosophy.
“I think we’re headed for a social reckoning with our history,” said Goodheart, “and I think the court has an important role to play grappling with that.”