Let’s consider the full process for appointment of judges in Massachusetts (taking a moment to appreciate that we are one of the rare states with no elected judges!) Here are the key players and the roles they play, chronologically:
1. Governor
She nominates all judges, of course, and we’ll get back to that in a moment. But at least as far back as Governor Michael Dukakis in 1975, each Governor has first created, by executive order, and appointed some form of Judicial Nominating Commission (JNC) to solicit applications, assess candidates, and ultimately make recommendations.
2. JNC
This is a statewide, non-political, non-partisan body that screens applications for all judicial and clerk-magistrate positions. The current commission, chaired by Abim Thomas, consists of 27 volunteer members who serve one-year terms at the Governor’s pleasure.
In addition to spelling out qualifications for judicial office and detailing the process by which the JNC is to conduct its business, Executive Order 610 includes rules of conduct regarding impartiality, advocacy, confidentiality, ex parte communications, conflict of interest, political contributions, and civility. The process is confidential, and each application is initially anonymous to the JNC reviewers, followed (for those who qualify) by an interview stage and due-diligence inquiries.
A two-thirds affirmative vote is required for the JNC to forward an applicant to the Governor’s Office to be considered for nomination, and they typically send 3-6 names to the Governor for each vacancy.
3. Governor
After reviewing applicants thus recommended for nomination, the Governor may decline to nominate any applicant, seek further recommendations from the Commission, or request that the application process be re-opened for the position.
4. Joint Bar Committee (JBC)
At this point, as a matter of practice, the Governor’s Office will seek the recommendations and assistance of the JBC on potential nominees. Formally established in 1961, the JBC is a 25-member committee chaired on an alternating basis by representatives of the BBA and the Massachusetts Bar Association (from the three members appointed by each). It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state. Members of the committee are non-partisan and generally serve three-year terms.
The JBC works with Governor’s Chief Legal Counsel in a confidential capacity to conduct its own independent review in order to provide recommendations as to whether a candidate is “well qualified,” “qualified,” “not qualified,” or there is insufficient information to evaluate the candidate. The committee considers several aspects of an individual before it takes a vote, including integrity, reputation, knowledge and ability in the field of law, professional experience, judicial temperament and commitment to public service.
The JBC then communicates its vote to the Governor’s Chief Legal Counsel for the Governor’s consideration.
5. Governor
After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the JNC, or to re-open the application process. When she is satisfied with the candidates, the Governor then makes her nominations to the Governor’s Council.
Any applicant recommended by the JNC may be considered for nomination by the Governor for any judicial vacancy for a period of up to 18 months after the date of the recommendation, subject to such updated due diligence.
6. Governor’s Council
Although they retain other responsibilities, this constitutional body—consisting of members elected individually in even-numbered years on a partisan basis from eight districts statewide—must approve of all judicial or clerk-magistrate candidates, with the Governor or Lt. Governor breaking any tie votes. Only New Hampshire uses a similar body.
Once approved, a nominee is sworn in by the Governor and ready to take the bench—and help extend Massachusetts’ tradition of excellence in the judiciary…
