fb-pixel Skip to main content

Baker, already faced with a historic chance to reshape judiciary, could now name the entire SJC

Massachusetts Governor Charlie Baker.Nathan Klima for The Boston Globe

The sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants has left the Massachusetts bar and broader political world mourning a jurist considered a “giant” within the court’s centuries-long history.

The tragedy also has opened the door for something rare, and perhaps unprecedented, in its modern iteration: Governor Charlie Baker could select an entire high court of his own nominees.

With Justice Barbara A. Lenk nearing her mandatory retirement in December, Baker must now weigh his sixth and seventh nominations — including his first for chief justice — to the seven-person bench. Should his picks be confirmed, the Republican governor will finish a historic remaking of the oldest continuous sitting appellate court in the Western hemisphere.


No governor since Francis W. Sargent, whose final term ended nearly 50 years ago, has tapped six new high-court justices while in office, the Globe has reported. And it’s unclear if any governor has named as many new SJC jurists as Baker will have since the early years of the state’s constitution.

Alan Rogers, a Boston College history professor who focuses on American legal history, said he’s aware of one governor who nominated seven new justices to the state’s highest court: John Hancock.

The John Hancock,” Rogers said of the Commonwealth’s first and third governor and the first person to sign the Declaration of Independence. Originally a five-person bench, the SJC didn’t add its seventh seat until 1873, 80 years after Hancock’s death.

“It would be increasingly unusual, in a modern era, for that to happen," Rogers said of seven nominations.

The possibility is real for Baker only because of a mixture of circumstance and tragedy.

Gants’s death at 65 shook the state’s judiciary on Monday, prompting an outpouring for the affable, highly respected jurist who just days earlier had disclosed he suffered a heart attack but said he intended to resume his full duties. After 11 years on the SJC, Gants was still four years from facing mandatory retirement in September 2024.


Baker, speaking Tuesday at an unrelated event in Fitchburg, indicated he had not yet considered how he would approach filling Gants’s seat. He described his death as a “shocking and in some ways, overwhelming event" — one, he said, made all the more unexpected given the “energy, kinetic energy" with which Gants lived.

“That’s a really bright light that just went out,” Baker said. “Honestly, given the short time frame between hearing the news about — it’s not even 24 hours — on Justice Gants, we haven’t thought much about next steps. There is a process. We need a few days to figure that out."

His team had been anticipating the departure of Lenk, 69, who had originally intended to retire in August, but later delayed her departure until Dec. 1 so the high court wouldn’t be short one justice when oral arguments began this month, a court spokeswoman told the Globe last month.

Amid pressure to expand the diversity of the bench, Baker had reopened the nominating process for Lenk’s successor in a bid to potentially expand the pool of replacements. Three of his appointees have been white men — only Kimberly S. Budd, a Baker nominee, is a person of color on the current SJC — and four of his five nominees were onetime prosecutors.


It’s a makeup that has spurred calls from legal groups for Baker to broaden his consideration, including weighing applicants with a background in racial justice, civil rights, criminal defense, or legal services.

But in filling Gants’s seat, legal observers say, Baker faces both a different chance and challenge. Traditionally, governors have turned to the current members of the bench in picking a chief justice, who plays both the leading legal and administrative role within the state’s judiciary.

Baker knows those choices well. He nominated each of the remaining judges beyond Lenk, including three at one time in 2016 in Frank M. Gaziano, David A. Lowy, and Budd. Justices Elspeth B. Cypher and Scott L. Kafker were sworn in during 2017.

Baker’s office did not address questions of whether the governor intends to make his selection for chief justice from the current court, saying only that he can, but is not required to, pull from its ranks.

“It’s a challenge for the court . . . and you are talking to a chief justice who never served as a judge on any court,” said former chief justice Margaret H. Marshall, who held the role for 11 years until December 2010.

“It was exhausting work. I had another four years to go [when I retired] and I used to say to Chief Justice Gants, when you get to the 11th year, you really feel like you’re running out of steam," she said.

The unexpected nature of Gants’s death could compound the complexity of Baker’s decision-making.


While the court can continue to function with just six justices, a vacancy opens the possibility of split rulings. It also adds to the work being handled by the remaining judges during an already demanding time in which the pandemic has stressed the state’s resources and, like in other government agencies, scrambled the court’s normal operations.

The SJC, for example, is already weighing a challenge to the sweeping emergency powers Baker has wielded amid the novel coronavirus pandemic, a decision Gants had been expected to participate in even though he wasn’t present for oral arguments last week.

“It is a job on top of a job, to be chief justice. And being an associate justice is a hugely demanding role" as is, said Lisa Goodheart, who chaired the state’s Judicial Nominating Commission under Governor Deval Patrick and was involved in recommendations for each of his SJC selections.

Patrick picked five new justices for the court over his two terms and nominated two chief justices, including Gants in 2014.

“He’s a giant," Goodheart said of Gants. "The loss is profound and the need is great. I think the governor has a daunting challenge, really. . . . To have [a vacancy] be totally unexpected and to be the chief, that is really a huge mountain to climb.”

Matt Stout can be reached at matt.stout@globe.com. Follow him on Twitter @mattpstout.