Baker’s right to reopen SJC nominations in the interest of diversity

The state's high court is so white partly because the legal field — particularly its upper echelon ― is, too

Justice Barbara Lenk is retiring from the Supreme Judicial Court on Dec. 1.The Boston Globe

You don’t need a law degree to figure out why Governor Charlie Baker has reopened the nominating process for a soon-to-be open seat on the Supreme Judicial Court.

Legal groups have been pushing for more diversity on the seven-member court: Three of Baker’s appointees have been white men, and four of his last five nominees were onetime prosecutors.

I haven’t been subtle about my feelings on the subject, either. The headline on a July 16 column I wrote blared: “Charlie Baker must pick a person of color for the SJC.”

The state’s highest court has only one justice of color: Kim Budd, a Black woman whom Baker appointed in 2016. With Justice Barbara Lenk reaching the mandatory retirement age of 70 this year, the governor has an opportunity to rebalance the court. In this moment of racial reckoning, Baker and the Commonwealth need to be on the right side of history.

I wrote last month that he should restart the process if diverse candidates weren’t given serious consideration. Baker’s office confirms the SJC vacancy has been reposted, and applications will be accepted until Sept. 11. Applicants who already have advanced in the process will remain under consideration.

The news was first reported by Massachusetts Lawyers Weekly.

Baker launched the SJC nomination process in March, after Lenk announced she would be leaving this year. She was originally set to retire next Monday but has decided to delay her departure until Dec. 1 so the high court won’t be short one justice when oral arguments begin in September, according to a court spokeswoman.

The SJC is so white because the legal field — particularly its upper echelon ― is predominantly white. Of the 373 justices in the state’s trial court system, only about 11 percent are people of color, according to a 2019 report.

The lack of diversity on the bench feels like a miscarriage of justice, especially when you consider who gets punished in our legal system.

According to a 2016 Massachusetts Sentencing Commission report, Black people in Massachusetts are incarcerated at nearly eight times the rate of white people, and Latino people are incarcerated at about five times the rate of white defendants. The report noted the “disparities are considerably larger than the national averages for these groups.”

The result: Black people represent 26 percent of those in prisons and jails in Massachusetts, but only 7 percent of the entire population, according to the Prison Policy Initiative, an Easthampton nonprofit research organization that works to reduce mass incarceration. Latinos account for 24 percent of those incarcerated but about 12 percent of the state’s population.

Meanwhile, white people account for 49 percent of those in prisons and jails, yet they make up 71 percent of the state’s population.

Does anyone really think justice is colorblind?

I’m sure there are good judges on the bench, but unconscious bias and systemic racism pervade society. Equal representation matters, perhaps nowhere more so than in our criminal justice system.

It’s a point that Suffolk District Attorney Rachael Rollins — the first woman of color to serve as a DA in the Commonwealth — drove home in an Aug. 4 letter to Baker, imploring him “to continue, and make more robust, your efforts to diversify the bench.”

“Black and Brown people are grossly over-represented in the criminal legal system and significantly under-represented in pivotal decision-making roles throughout the system,” she wrote.

Rollins highlights how few men of color, particularly Black men, are judges in Massachusetts.

“Alarmingly, there is not a single Black man, or man of color presiding on the Juvenile Court,” she wrote. “Yet over 90 percent of the juvenile cases my office handles involve young Black and Brown children.”

Baker is making the right call to reopen the SJC nomination process. He has added diversity to the 328-year-old court before, and he can do it again. There are qualified candidates of color, many of them sitting judges in the lower courts. But the nominating process can be highly political ― who knows how many people don’t bother to apply because they think the fix is in?

But Baker isn’t the only one who can lead on making sure the judiciary reflects the people it serves. The Governor’s Council must sign off on all judicial picks, and it has approved all but one of Baker’s 158 nominees. Some councilors are urging Baker to pick a person of color for the SJC.

“I will only vote for a diverse candidate, period,” said Terrence Kennedy, an Everett lawyer who is one of seven members of the elected council.

Another councilor, Eileen Duff, a realtor from Gloucester, has also been pushing for another person of color on the high court.

“You really need to have representation in the courtroom,” Duff said. “It doesn’t just mean the jury. It means the judge, as well.”

Lenk’s departure reduces the number of women on the SJC, which is why Boston lawyer Chris Iannella would like to see a woman of color nominated.

“Five white men, we can do better than that,” Iannella said of the current makeup of the SJC.

It may seem the tide is turning to diversify the SJC in particular and the bench in general. But this is not the time for good intentions.

It’s the time for action. It’s the time to find viable candidates of color to apply to the SJC. It’s the time to reexamine the qualities that make a good judge.

And it’s a time to remember this well-known quote from Oliver Wendell Holmes Jr., who served on the SJC before President Theodore Roosevelt appointed him to the US Supreme Court:

“The life of the law has not been logic,” he said. “It has been experience.”