It’s been quite a week, with major implications for justice in the Commonwealth for years to come, as the Governor announced his three nominees for upcoming Supreme Judicial Court (SJC) vacancies on Tuesday. The SJC is not only the highest appellate court in the state, issuing approximately 200 full bench written decisions and 600 single justice decisions annually, but its justices are also responsible for the “general superintendence” of the judiciary and the bar. This function includes making, revising, and approving rules for the operations of the courts and providing advisory opinions to other branches of government. For example, over the past few months, the BBA has taken part in commenting on proposed revisions to civil procedures for various court departments aimed at improving the cost-effectiveness of litigation. This overhaul originated with the SJC and final revisions will be approved by an SJC led committee before being codified. It is all but impossible to overstate the huge role this court plays for justice and legal practice in Massachusetts.
What is Changing?
Therefore, it is truly remarkable that this Court will be going through such a major change in its makeup in so short a time. With five of the seven justices leaving by the end of next year, the first three replacements are only part of the picture. The justices leaving before the court’s next session in September are Robert Cordy, Francis X. Spina and Fernande R.V. Duffly.
- Robert Cordy – In February, Justice Cordy announced his early retirement (at age 66, four years short of the mandatory retirement age). He was appointed to the SJC by Governor Paul Cellucci in 2001. Justice Cordy graduated from Harvard Law School and started his legal career with the Massachusetts Public Defenders Office. He then worked for the Department of Revenue, the State Ethics Commission, as a Federal Prosecutor in the US Attorney’s Office in Massachusetts, as a partner at the law firm Burns & Levinson, and as Chief Legal Counsel to Governor William Weld. Prior to his appointment to the SJC in 2001 by Governor Paul Cellucci, Cordy was Managing Partner in the Boston office of the international law firm of McDermott, Will & Emery. He has served as Chair of the SJC Rules Committee and in leadership roles in a number of other court committees, including those focused on media and capital planning. He has not yet announced his plans after stepping down from the state’s highest court.
- Fernande Duffly – will retire on July 12, at the age of 67, a move she explained is to help her husband recover from a recent surgery. A native of Indonesia and a graduate of Harvard Law School, Justice Duffly started her legal career at a Boston law firm then known as Warner and Stackpole. She served on the Probate and Family Court from 1992-2000, the Appeals Court from 2000 to 2011, and was appointed to the SJC in 2011 by Governor Deval Patrick, becoming the first Asian American member of that court. Throughout her career she has demonstrated a commitment to supporting women and diversity in the law.
- Francis Spina – From Pittsfield, Justice Spina graduated from Boston College Law School before working in legal services for two years. He eventually became an assistant district attorney before becoming a partner in a Pittsfield law firm. He was appointed to the Superior Court in 1993, then to the Appeals Court in 1997, and to the SJC in 1999 by Governor Paul Cellucci. He will reach the mandatory retirement age of 70 on November 13, 2016, but is stepping down on August 12.
Of the seven current SJC Justices, Spina and Cordy are the only two who were nominated to the SJC by Republicans (both by Paul Cellucci). Obviously that is going to change soon as Republican Governor Charlie Baker starts to shape the court. His three nominees to fill these spots are all former prosecutors and current Superior Court judges, Kimberly S. Budd, Frank M. Gaziano, and David A. Lowy.
- Kimberly Budd – A resident of Newton and graduate of Harvard Law School, Budd began her legal career with the Boston law firm Mintz Levin. She then became an Assistant U.S. Attorney before serving as University Attorney for Harvard and later as Director of the Community Values program at Harvard Business School before her appointment to the Superior Court in 2009 by Governor Deval Patrick. She served as a member of the BBA’s Education Committee from 2006 to 2007 and Council from 2003 to 2005 prior to her appointment to the bench. After becoming a judge, she served on the Boston Bar Journal Board of Editors from 2012 to 2014. Budd will be the second black female justice on the SJC after the 2014 appointment of Justice Geraldine Hines.
- Frank Gaziano – Graduate of Suffolk University Law School, he started his legal career at the Boston law firm of Foley, Hoag & Eliot (now Foley Hoag). He also worked as a prosecutor in the Plymouth County District Attorney’s office and the U.S Attorney’s office. Gaziano was appointed to the Superior Court in 2004 by Governor Mitt Romney. He served on the Boston Bar Journal Board of Editors in 2011 and 2012.
- David Lowy – A resident of Marblehead, and graduate of Boston University School of Law, David Lowy has served as a judge since 1997, first in District Court and then, since 2001, in Essex Superior Court. Prior to his appointment to the bench he worked as an associate at the Boston office of the law firm Goodwin, Procter & Hoar (now Goodwin Procter) and as an assistant district attorney. He also worked as Deputy Legal Counsel to Governor William Weld from 1992 to 1995, under whom Governor Baker also served as a cabinet secretary.
These three nominees emerged thanks to the hard work of a special 12-member Supreme Judicial Court Nominating Commission (Special JNC) established by the Governor in February to assist the current Judicial Nominating Commission (JNC) in vetting all of the SJC applicants and nominees. BBA President Lisa Arrowood is a member of this panel along with a number of former BBA leaders. The Special JNC is co-chaired the Governor’s Chief Legal Counsel Lon Povich and former BBA President Paul Dacier, who is also chair of the JNC and executive vice president and general counsel of EMC Corporation. The other members include:
- Former SJC Chief Justice Roderick Ireland;
- Roberto Braceras, Vice-Chair, JNC, and Partner, Goodwin Procter LLP;
- Brackett Denniston, retired General Counsel of GE;
- Retired Superior Court Justice Margaret Hinkle;
- Marsha Kazarosian, immediate Past President, Massachusetts Bar Association, and partner, Kazarosian Costello;
- Joan Lukey, Partner, Choate Hall & Stewart, LLP;
- Elizabeth Lunt, Of Counsel, Zalkind Duncan & Bernstein;
- John Pucci, Partner, Bulkley, Richardson and Gelinas, LLP; and
- Carol Vittorioso, Vice-Chair, JNC, Partner, Vittorioso & Taylor.
We have explained the JNC before, but, to briefly review, the JNC is a group of diverse individuals appointed by the Governor (the regular JNC has 21 members, while the Special JNC has 12), with great knowledge and experience with the court system. Members of the bar must have at least seven years of practice experience. The JNC provides a first layer of review for judicial nominees – identifying and inviting applications by qualified individuals, reviewing applications, and interviewing candidates. The group conducts votes requiring an increasing number of approving Commissioners at various steps of the process, narrowing down the list of individuals until a final vote requiring a 2/3 majority is conducted to see which applicants’ names will be submitted to the Governor for consideration for nomination. They typically provide between three and six candidates for each vacancy. The Governor’s Office then selects its candidates, here, Budd, Gaziano, and Lowy.
The next step is approval by the Governor’s Council, a group of eight individuals elected every two years and the Lieutenant Governor, who serves ex-officio as president of the Council. The Councilors review the nominee’s backgrounds, interview them, and hold open hearings where their supporters and opponents have the chance to speak. The three candidates have already been approved by past iterations of the Council as they are all currently on the bench, but nothing can be taken for granted.
In fact, the process is already garnering media attention as the Council has taken issue with Lt. Gov. Karyn Polito’s plan to preside over the confirmation hearings. Councilors typically preside over confirmation hearings for lower court judges, but it has been common practice in recent years for the lieutenant governor to preside over hearings for SJC nominees. However, Councilors challenged Polito, alleging that her presence at the upcoming confirmation hearings will be an unfair publicity grab and was disrespectful to the Council members. Polito cited historical precedent for her intended role.
The schedule for nominee hearings is set and we look forward to keeping you updated on their progress. The hearings are all at 9:00 am in Room 428 of the State House as follows:
- July 6: Judge Frank Gaziano
- July 20: Judge David Lowy
- August 3: Judge Kimberly Budd
Finally, keep in mind that this is only the beginning. The SJC overhaul continues next year as Justices Margot Botsford and Geraldine Hines will both reach mandatory retirement age, Botsford in March and Hines in October. While we don’t know who will come to the fore as nominees then, a couple of qualifications to look for include:
- A resident of western Massachusetts – Francis Spina, the only Justice from this region, hails from Pittsfield, and is retiring this year. Nominee Kimberly Budd is the daughter of former U.S. Attorney Wayne Budd, a native of Springfield, but she grew up in Peabody and lives in Newton. When asked about geographical diversity at his press conference to introduce the nominees, the Governor urged patience.
- A judge from the Appeals Court – Governor’s Councilor Eileen Duff questioned, as did the Boston Herald, why none of the current nominees came from this court, experience she felt would prepare them well for the SJC.
Throughout this process, the Governor has frequently repeated that he is simply looking for the best candidates. He and his office continue to encourage strong candidates to apply and are committed to continuing the remarkable traditions of the SJC. However, the maintenance of a great and diverse bench relies on a great and diverse candidate pool. The Governor has done his part by creating a remarkably diverse JNC and Special JNC under all metrics from geography to demographics to practice field and size. It is up to candidates now to apply. We look forward to seeing what the state’s highest court looks like at the end of this process.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association