More than 200 judges crowded together for a photo this week on the State House’s Grand Staircase, forming a wall of black robes so large it filled every step before nearly spilling onto the floor above.
“Ho-ly . . .” Governor Charlie Baker said when he saw the group, and then paused as if to censor his next word. “Moly!”
As Baker prepares to leave office, perhaps nowhere will his reach be felt longer than in the judiciary. In nearly eight years, the Republican has appointed nearly 60 percent of the state’s 418 justices, installing judges who will oversee murder trials, reshape constitutional law, and unknot thorny civil litigation for years, if not decades, to come.
He has named the entire seven-member Supreme Judicial Court, a first for a modern Massachusetts governor, and with three justices of color, built the most diverse high court in its 330-year history. According to his office, not one of Baker’s hundreds of judicial selections has been rejected for confirmation by the Governor’s Council, which vets and approves such picks.
Most of those 246 appointments joined him for the photo op, cheering both Baker and Karyn Polito, an attorney who, legal observers say, wielded an unusual amount of influence for a lieutenant governor over judicial selections.
Baker’s bench — which includes judges appointed for the first time or elevated from one court to another — is also likely to grow, with at least one other nominee still awaiting a confirmation vote.
“It’s a historic run,” said Martin W. Healy, chief legal counsel and chief operating officer for the Massachusetts Bar Association. “When you think about it, people that have been appointed by him will be serving over the next couple decades, 20 or 30 years from now. He leaves an indelible imprint.”
How it will be ultimately judged may be years in the offing. Roughly 47 percent of his appointments were women and 18 percent were people of color. Those figures lag the state’s population as a whole but are similar to, if not slightly better than, the makeup of the appointments made by Baker’s predecessor, Deval Patrick, who across eight years appointed nearly 200 judges.
Many of his top appointments could remain in place long after he leaves office in January. Each of Baker’s seven SJC nominees was younger than 60 when he nominated them. Should every justice serve until the mandatory retirement age of 70, the current iteration of the court will remain together until February 2029.
That Baker was able to reshape more than half of the bench is owed partly to circumstance and longevity. He and Patrick are the only governors to serve full two terms since 1990. It also was only after the sudden death of Patrick appointee Chief Justice Ralph D. Gants in September 2020 that Baker had the chance to name all seven members of the SJC.
The only other Massachusetts governor believed to have nominated seven new justices to the highest court was John Hancock, the first and third governor and the first person to sign the Declaration of Independence.
“You have to be astonished by the fact that the governor was in the right place at the right time to make so many appointments,” said Lawrence Friedman, a New England Law professor. “And I think there is a general feeling he did not abuse that authority.”
Baker said that in interviews with nominees, he often pressed them on what first drew them to becoming a lawyer, and how that factored into why they want to be a judge. That “life experience,” he said, is often crucial in diversifying the outlook from the bench.
“We want people coming into the court who are going to see people . . . who provide them with some comfort based on who they are and how they act,” Baker said. “What they want more than anything is to be heard and be treated fairly and with respect.”
But some argue Baker could have also gone further. Legal observers say Baker tended to lean toward nominees with backgrounds as prosecutors, fitting a more traditional path to the bench that advocates and criminal defense attorneys hope his successor, Attorney General Maura Healey, will try to break.
While the governor has emphasized diversity — and is widely regarded as delivering with his SJC selections — critics say he has missed chances to elevate candidates in a judiciary that is still mostly white men.
Baker has appointed 44 judges of color. Kimberly S. Budd, his pick for SJC chief justice, is the first Black woman to hold the position, and Justice Dalila Argaez Wendlandt is the first Latina on the high court. Justice Elspeth “Ellie” B. Cypher, the SJC’s second openly gay jurist, is one of seven openly LGBTQ judges Baker has tapped across the judiciary.
The demographics of his selections largely align with judges appointed by Patrick, the state’s first Black governor who, too, made installing more women and people of color to the bench a priority. Before Patrick left office in 2015, 44 percent of his 190 appointments were women and 17 percent were people of color.
They’re both substantially higher than Patrick’s predecessor, Mitt Romney. In a single term, Romney made 65 appointments, 13 percent of whom were people of color and 28 percent of whom were women.
But the needle has been slow to move overall. At the trial court level, just 12 percent of the 350 justices were considered racially or ethnically diverse in fiscal year 2021 and 45 percent were women, according to the judiciary’s most recent available data. Those are slight improvements from four years earlier in the court’s first annual diversity report, when the figures were 11 percent and 41 percent, respectively.
“Whoever is governor should do better,” said retired Justice Geraldine S. Hines, a Patrick appointee who was the first Black woman named to the SJC, and who believes Baker could have made greater strides in diversifying the bench. She was also critical of Patrick early in his first term for not appointing more judges of color.
Hines now serves as president of the Justice Harry J. Elam Judicial Conference, an organization of judges of color in Massachusetts. “One of our main goals has been trying to get the governor to increase the diversity of the judiciary,” she said. “I don’t think we’ve had much luck.”
In reshaping the judiciary, Baker leaned heavily on Polito, his two-term lieutenant governor. Beyond chairing the Governor’s Council — one of the role’s few constitutional responsibilities — Polito interviewed every candidate that the Judicial Nominating Commission recommended in addition to Baker, something Martin Healy of the bar association and others described as a break in tradition.
Polito said in an interview that she and Baker designed the process together, and Baker noted his own background factored into his thinking.
“I’m not an attorney,” he said.
Polito was also more familiar with those in the various bar associations, said Eileen Duff, a governor’s councilor.
“They lobbied her, she spoke with them. I think Karyn Polito is someone who is very underestimated in her power in the administration,” said Duff, a Gloucester Democrat. “I did not go into this thinking I would like her or like working with her, so I came with my own bias. And she changed that. I give that woman a lot of credit. She’s incredibly disciplined.”
Still, others have been left wanting with Baker’s selections.
John Amabile, president of the Massachusetts Association of Criminal Defense Lawyers, said that not having a single justice with a criminal defense background on the SJC, which regularly hears appeals on murder convictions, can be a “major problem.”
“That is true up and down the judiciary,” he said. “It’s bulked up with former prosecutors and attorneys from large law firms. That doesn’t make you a bad person. But that does not effectively represent the broad constituency that the judicial officers encounter in their job.”