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Patrick’s selections leave imprint on Mass. judiciary

Governor Deval Patrick appeared with Justice Roderick Ireland after he was confirmed as the new Chief Justice of the Massachusetts Supreme Court in December 2010.
Governor Deval Patrick appeared with Justice Roderick Ireland after he was confirmed as the new Chief Justice of the Massachusetts Supreme Court in December 2010.David L Ryan/Globe staff file/Globe Staff

Governor Deval Patrick will leave plenty behind when he steps down next month, from the foundations of a multibillion-dollar casino industry to lingering questions about a troubled medical marijuana rollout.

But he may leave his deepest, most enduring imprint on the state’s sprawling judiciary.

In his two terms, Patrick has appointed nearly half of the state’s 411 judges — putting child support disputes, murder trials, and questions of constitutional law in the hands of a substantially more diverse bench for decades to come.

“He’s had a very dramatic impact on the workings of the court system,” said Martin W. Healy, chief operating officer and chief legal counsel for the Massachusetts Bar Association. “Much more than any governor in recent history.”

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Patrick has had his share of setbacks. Nine of his picks for the bench failed to win confirmation or withdrew in the face of opposition; that’s more scotched nominations than any recent governor has endured. And some of his efforts at criminal justice reform fell flat.

The governor says his failure to coax state legislators into eliminating mandatory minimum sentences for nonviolent crimes is one of his chief regrets. And advocates say he put too much energy into an essentially bureaucratic struggle: his failed effort to move the scandal-plagued Probation Department out of the judiciary and into the executive branch.

But Patrick’s signature push, adding more women and minorities to the bench, is widely considered a success.

“The governor was committed to diversity, in the very best sense of that word, but only with extremely well-qualified people,” said Margaret Marshall, a former Massachusetts Supreme Judicial Court chief justice, a Republican appointee who was the first woman to lead the state’s high court.

A focus on courtroom diversity can invite controversy.

President Obama’s Supreme Court nominee Sonia Sotomayor faced criticism for her comment that a “wise Latina with the richness of her experiences” could be expected to reach a better conclusion than a white male judge. But in left-leaning Massachusetts, Patrick’s push to add more minority judges to the bench has provoked only scattered, private complaint.

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His bigger problem came midway through his first term, when critics said the state’s first black governor had not yet done enough to diversify the bench — lagging behind his GOP predecessors in the appointment of black and Latino judges.

At the time, Patrick acknowledged his then-meager number of minority appointments was “not good enough.” But he urged patience. “I’ve been at this two years,” he told the Globe in an interview in December 2008. “At the end of eight or 12 years, judge the record. All right?”

Since then, the governor has appointed the Supreme Judicial Court’s first black chief justice, Roderick L. Ireland (since retired), its first black woman, Geraldine S. Hines

Geraldine S. Hines
Geraldine S. HinesJonathan Wiggs/Globe Staff

, its first Asian-American, Fernande R.V. Duffly, and its first openly gay jurist, Barbara A. Lenk.

When new Chief Justice Ralph D. Gants took the oath of office in July, he marveled at the diversity of the SJC, calling it “a court where two justices have a spouse named Deborah, one justice a man, the other a woman.” He said his own appointment marked “two historic firsts: the first Jewish chief justice and the first chief justice to play soccer in the over-the-hill league.”

For all his focus on diversity, though, Patrick’s picks for the judiciary — from the SJC down to the district courts — still do not reflect the state’s demographics.

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Forty-four percent of his 190 appointments are women, while 52 percent of Massachusetts is female. Seventeen percent of his picks are members of minority groups, while 20 percent of the state’s population is of color.

But his appointments do make for a substantially more varied group than his immediate predecessors’ — especially when it comes to gender.

Of the 65 appointments Governor Mitt Romney made during his single term in office, 13 percent were minorities and 28 percent were women, according to data compiled by the Joint Bar Committee on Judicial Appointments, a group of lawyers that vets governors’ nominees for judgeships. Acting Governor Jane Swift’s picks, during her short tenure, were 9 percent minority and 20 percent female.

Patrick, who worked as a corporate and civil rights lawyer before winning the governor’s office, also sought a broad range of legal experience, naming dozens of lawyers in private practice to the bench, a handful of public defenders, and a sprinkling of academics.

Prosecutors, who dominated the rolls of Romney’s picks, played a comparatively small role under Patrick, accounting for just 16 percent of his selections. Healy, of the Massachusetts Bar Association, said the governor’s practice of looking for nominees beyond the offices of district attorneys, the Massachusetts attorney general, and the US attorney amounted to a significant break with tradition.

Fernande R.V. ("Nan") Duffly
Fernande R.V. ("Nan") DufflyJonathan Wiggs/Globe Staff

Prosecutors, he said, are considered safe selections: They are well-vetted and come with built-in law-and-order credentials. “This governor has taken more of a bold step and said, ‘I want a bench that reflects not only the diversity of Massachusetts, but the diversity of the legal community,’ ” Healy said.

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Patrick, in an interview last week, said he sought not just technical skill, but judges who would have a good touch with those who appear before the court. “People’s sense of justice depends on more than whether the facts were fairly found and the law was rightly applied,” he said. “It also has to do with whether they feel heard.”

Observers say it’s not entirely clear how Patrick’s judicial philosophy will play out on the bench. Gary Klein, a prominent Boston housing lawyer, said the Supreme Judicial Court has sent conflicting signals on consumer law, for instance.

But there is a broad consensus that the governor, who named five of the seven current members of the SJC, has built on a long tradition of well-regarded, generally liberal high courts.

Since Patrick named his first chief justice in 2010, the SJC has barred police from ordering people out of parked cars simply because they smell marijuana, struck down life sentences without parole for juveniles, and ruled that lenders cannot foreclose on homes without the proper paperwork.

The foreclosure decision, issued in 2011, was called a potential game-changer at the time. Many mortgages were bundled into investments before the financial crash, leaving a messy, twisted paper trail and — with the ruling — the possibility, many thought, that thousands of people could avoid losing their homes. But Klein, the housing lawyer, said it hasn’t blocked as many foreclosures as anticipated.

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Barbara A. Lenk
Barbara A. Lenk Yoon S. Byun/Globe Staff

Indeed, none of the SJC’s recent rulings have had the national impact of its Goodridge v. Department of Public Health decision in 2003, which made Massachusetts the first state in the nation to legalize same-sex marriage. But the SJC is still considered one of the most important state supreme courts in the country.

A study published in the University of California Davis Law Review in 2007, taking decades of decisions into account, ranked the SJC the nation’s sixth-most influential state high court, behind panels in California, Washington, New Jersey, Kansas, and Minnesota.

Patrick’s chance to install a majority of the SJC and to fill so many seats in the broader judiciary is, in part, a function of longevity. He is the first governor to serve two full terms since Michael Dukakis in the 1980s.

But he also benefited from a steady stream of judicial retirements, including a surge this year brought on by a bump in retirement benefits. “Megabucks, lottery — he won the judicial selection lottery,” said Daniel B. Winslow, a former district court judge and legal counsel for Romney.

Not all of Patrick’s picks went through.

In 2010, for instance, nominee David Aptaker withdrew his candidacy after failing to disclose campaign contributions to a former state senator battling sexual assault charges and a former register of probate convicted of stealing money from state copying machines.

The governor also had a run-in with one high-profile selection.

Just weeks after Patrick appointed Ireland chief justice of the SJC, the judge published an opinion article in the Globe arguing that the Probation Department, embroiled in a patronage scandal, should remain a part of the judiciary.

That put him in direct conflict with Patrick, who was urging lawmakers to move probation into the executive branch and merge it with parole in a bid to create a more effective, seemless service.

An awkward private meeting between governor and appointee did little to change the situation. And Ireland, in a highly unusual move, later appeared with House Speaker Robert A. DeLeo at a press conference to advocate for his position.

Probation, in the end, remained in the judiciary. And John Larivee, chief executive of Community Resources for Justice, which advocates for criminal justice reform, says Patrick may have expended too much political capital on the fight. “That seemed to become the focal point of criminal justice reform,” he said. “And I don’t think it’s all that important.”

Probation, he said, can function equally well within the judiciary or the executive branch.

Larivee added that the governor leaves some critical work undone: completing the proposed overhaul of Bridgewater State Hospital, a Department of Correction facility that has come under fire for the death of three mental health patients; improving the women’s prison in Framingham; and eliminating mandatory minimum sentences for nonviolent offenses.

But he acknowledged the political difficulty of outlawing mandatory minimums altogether; district attorneys strongly oppose the idea. And he credited the governor with signing legislation that shrunk the length of some of them.

Larivee and other criminal justice reform advocates also praise Patrick for legislation that seals a person’s felony conviction and makes it unavailable to prospective employers after 10 years, instead of the 15 years designated under previous law. The measure, designed to make it easier for former convicts to get jobs, also shortened the waiting period for sealing misdemeanors to five years from 10.

This change in the state’s Criminal Offender Record Information (CORI) law, which Patrick had proposed during his first campaign, did not draw universal praise, though. Business interests said it hampered their ability to make good hiring decisions. At least one district attorney was a vocal opponent. And even a few Democratic legislators objected.

“I feel very strongly that we should be strengthening the CORI law and not making it more weak, and I feel that’s what this does, absolutely weaken the CORI law,’’ Representative James R. Miceli, a Wilmington Democrat, said after the vote. “People who have a history might end up in positions where they shouldn’t be.’’

The full impact of CORI reform, like much of Patrick’s judicial legacy, will only be known in time.


David Scharfenberg can be reached at david.scharf-enberg@globe.com. Follow him on Twitter @dscharfGlobe