Issue Watch #25 – ABA Updates, SJC Arguments, and Judicial Independence

No new judicial nominations since last time, but the Governor’s Council did confirm four judges to three departments. A new report highlights growing threats to the judiciary, there’s been a lot happening at the ABA that I’ll catch you up on, and I’ll preview the return of regular monthly arguments at the SJC this week.

News from the Courts

New Report Underscores Threats to Judges

A recent report titled Threats to the Independence of the Federal Judiciary calls attention to the rise in “threats of violence, intimidation, and disinformation directed at federal judges”—as well as defiance of lawfully entered judgments—noting that “[t]he volume, intensity, and character of recent attacks … is profoundly eroding the rule of law.” The report, produced by NYU Law School’s Rule of Law Lab and the Berkeley Judicial Institute, urges bar associations and lawyers to take affirmative steps to defend judicial independence, while offering recommendations for public officials, lawmakers, federal prosecutors, and retired judges.

In 2019, the BBA published a similar report on the importance of judicial independence to maintaining our democracy, including recommendations for bar associations, lawyers, courts, and judges. Sad to say, the landscape has not improved in the interim. The new study, also covered in the Boston Globe, shares the view that lawyers have a special responsibility to preserve public confidence in the courts and are uniquely positioned to engage in advocacy in ways that sitting judges cannot. Interviews with current judges also offer a sobering look at how today’s threat environment is affecting judges and their families.

More from the Bolch Judicial Institute

SJC Returns to Oral Arguments

A few cases to watch as the SJC resumes oral arguments after its summer break…

BBA Joins Amicus Brief on Shackling of Defendants

This Friday, the SJC will hear arguments on Commonwealth v. Esteras, a case in which the BBA joined an amicus brief drafted by the National Association of Criminal Defense Lawyers. The brief argues that due process bars shackling of a defendant in a SDP (sexually dangerous person) civil-commitment trial unless a judge makes an individualized determination that restraints are necessary. Furthermore, it argues that if the shackling is visible, the Commonwealth should bear the burden of proving beyond a reasonable doubt that the error was harmless.

The brief was drafted by Daniel K. Gelb and Michaela Dunn. You can stream the hearing live or watch a recording later.

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I want to flag one more case being heard by the SJC this month, even though the BBA has no position on it. In Commonwealth v. Inglis, an indigent appellant is asking the Court to reverse a trial judge’s denial of his motion to seal a request for funds to hire experts under a provision of the Indigent Court Costs Law, G.L. c. 261, § 27C(4).

Looking ahead, three cases on the October docket address the increasingly common circumstance of a defendant who is detained by ICE agents during a criminal trial. A provision of the new Protect Act—one that the BBA endorsed—aims to prevent immigration arrests in and around courthouses, which is what happened in one of these cases, Commonwealth v. Martell-Lebron.

Globe: New Immigration Judges on Massachusetts Lack Experience

The Boston Globe reports that four newly appointed judges on the Massachusetts Immigration Court lack the experience in that area that is—or used to be—typical of that bench. The moves are part of a shake-up that has seen 17 judges leave the Massachusetts court and more than 110 fired nationwide by the current Administration, which has pressured the Court to act more quickly—and which ultimately controls the Immigration Court, unlike other independent courts.

Birthright Citizenship Likely to Survive … Again

Not long after the Supreme Court rejected an executive order that purported to undo the US Constitution’s guarantee of birthright citizenship—which we spoke on at the time—the President issued new executive orders in August that sought to deny citizenship to people born in the US who fall into any of several broad categories.

Last week, a federal judge preliminarily enjoined enforcement of one of those efforts, finding it ”almost certainly unconstitutional … for the simple reason that the Supreme Court … already decided that the children in the class are citizens at birth.”

Mifepristone Case Put on Hold

A federal judge has agreed to a request from the federal government to pause a lawsuit brought by the Florida and Texas Attorneys General seeking to revoke FDA approval of the abortion drug mifepristone while the agency conducts a review. The judge also denied a motion by a drug manufacturer and distributor to dismiss the suit.

We welcomed a Supreme Court ruling that tossed an earlier iteration of the challenge, while cautioning that continued vigilance is necessary to protect women’s access to safe, medically appropriate care and doctors’ rights to provide it amidst efforts to roll back access nationwide.

CJA Panel Application Now Open

The federal District Court of Massachusetts is now accepting applications for the 2027 Criminal Justice Act Panel through 5 p.m. Monday, October 5. Panel members accept court appointments to represent indigent defendants. More information and links to the applications are on-line.

Questions should be directed to the Court’s CJA Liaison, Kerri Garbus.

Confirmations

Confirmations to the Superior Court

Christopher Spring operated a private practice for the past 20 years, representing individuals in a broad range of criminal matters in the District and Superior Courts and in the Appeals Court. He tried over 150 cases to verdict and argued six cases in the Appeals Court. Prior to entering private practice, He was a litigation associate at Morrison Mahoney, representing insurance carriers and self-insured entities in medical-malpractice, premises-liability, and motor-vehicle litigation. He began his career as an ADA in Middlesex County, where he investigated and presented felony matters to the grand jury and prosecuted a broad range of criminal cases in the District and Superior Courts. He handled cases involving violent crime, drug trafficking, firearms offenses, operating under the influence, domestic violence, and other serious criminal matters. His B.A. is from the University of New Hampshire, and his J.D. is from Notre Dame Law School.

Lynn Feigenbaum served as an ADA in Suffolk County for over two decades. As Chief of the Major Felony Bureau from 2019, she supervised a team of attorneys and staff responsible for complex felony cases and oversaw their investigation and prosecution of violent crimes. She also served as Chief of the Motor Vehicle Homicide Unit, and in the Roxbury Division of the BMC, the Juvenile Unit, the Major Felony Unit, the Domestic Violence and Sexual Assault Unit, and the Senior Trial Unit. Her diverse experience includes grand-jury investigations and prosecutions involving homicides, sexual assaults, domestic violence, and other violent offenses. She is a graduate of Northwestern University and Northeastern University Law School.

Confirmation to the BMC

Keith J. Nicholson was a civil litigator and criminal-defense attorney who maintained his own practice for 30 years, representing individuals, businesses, and law-enforcement professionals statewide, handling all aspects of representation from client intake and discovery through motion practice, settlement negotiations, arbitration, administrative proceedings and trial. He also represented indigent defendants in the BMC through Suffolk Lawyers for Justice and served as counsel to the Boston Police Patrolmen’s Association and the New England Police Benevolent Association, representing police officers and correctional officers in arbitration proceedings, civil-service hearings, and criminal prosecutions. Previously, in the Trial Division of the Massachusetts AG’s Office, he conducted investigations, discovery, and legal research in a broad range of criminal and civil matters. He is a graduate of Providence College and New England School of Law.

Confirmation to the Probate & Family Court

Lisa McCormack comes to the bench with extensive expertise in probate administration, guardianships, conservatorships, trusts, adoptions, and civil litigation. For more than a decade, she was a Judicial Case Manager and MUPC Magistrate in the Berkshire Probate & Family Court, where she provided legal and procedural guidance to the Justices, reviewed complex probate and family-law matters, assisted in drafting judicial decisions, oversaw judicial staff, and facilitated dispute intervention in high-conflict probate and equity cases. She also worked closely with self-represented litigants, attorneys, guardians ad litem, and court personnel to ensure the efficient administration of justice. Before that, she was a Senior Associate at Cain Hibbard & Myers, P.C., with a concentration in health-care law, medical-malpractice defense, mental-health litigation, guardianships and conservatorships, employment and commercial litigation, and real-estate disputes. She also practiced bankruptcy law at Kressler & Kressler, P.C., and served as a judicial intern for the US District Court for the District of Connecticut. She holds a B.A. from Smith College and a J.D. from Western New England College School of Law.

News from the ABA

The Wall Street Journal reported on a leaked document suggesting that the US Department of Education may seek to strip the power to accredit law schools from the Council of the ABA’s Section of Legal Education and Admissions to the Bar. The Council’s Chair points out that it operates independently from the ABA and says, “Fragmenting our accreditation system would inhibit this mobility and hinder employers from hiring the best talent anywhere in the country.”
Relatedly, the ABA’s accreditation council voted yesterday to repeal Standard 206, which required, in part, that law schools “demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups”. This provision was first suspended until August 2027, after it drew the ire of the White House, which claims it is illegal. The ABA’s House of Delegates recently declined to adopt a recommendation to take this action, but the council apparently acted out of concern that it could otherwise lose its authority to accredit law schools.
In its litigation challenging the Trump Administration’s actions targeting lawyers and law firms, the ABA is seeking discovery of the names and relevant communications of individuals in drafting the executive orders In response to a show-cause order from the judge, the White House is claiming the information is covered by presidential privilege.

News from Our Partners

The Massachusetts Appleseed Center for Law and Justice, a BBF grantee, will be holding a webinar on October 1st at noon, titled Inside the Core: Free Legal Rights Resources and offering a closer look at the education resources and initiatives at the heart of its work, with a focus on helping people better understand their rights and connect them with practical information they can use in their communities.

The calendar has turned at the BBA, the new program year has begun, and Mark Fleming has taken over as President from Suma Nair. Best wishes to both – and to Mark’s daughters, who recorded a loving tribute to their dad … pausing at 0:59 to throw some shade at your humble correspondent!