Judicial appointments: a better way

The Governor’s Council’s rejection last week of Pittsfield attorney Michael J. McCarthy as a justice in the Southern Berkshire District Court was unpopular with many local officials and residents and has raised questions about how Massachusetts selects its judges and other court personnel.

The council is an independent body of eight members elected by district, with the lieutenant governor serving ex officio. It must approve several kinds of gubernatorial appointments, among other duties.

By all accounts, McCarthy has served ably as a prosecutor, city attorney and lawyer, but the council has twice rejected his nomination as a judge. He came under attack last year after he said he would provide “hints” to inexperienced prosecutors who faltered during a trial.

The nominee apologized for his mistake, but the damage had been done, and dissenting councilors questioned whether McCarthy could be impartial.

McCarthy’s supporters have jumped to his defense, as there appears to be no evidence that, in a trial situation, he would not be impartial.  But with few exceptions, the council has approved the large majority of Governor Deval Patrick’s nominees, so the most common local reaction to McCarthy’s rejection is confusion or a charge the council is “playing politics.”

The method of selecting judges varies from state to state, but is always political. In Massachusetts, judges are nominated by a nonpartisan commission, appointed by the governor and confirmed by the council.

In total, there are 27 states that primarily appoint judges. In 15 states, they’re mostly elected in nonpartisan contests, and in eight states, they run as members of a political party.

All of these systems have their positive and weak points, but none is without flaw. The election of judges involves campaign fundraising, and where money changes hands, there’s always an opportunity for influence peddling. And, as with all elections, it can be raw politics played out on a public stage, even in the nonpartisan races. 

Appointments are usually a quieter process, where few even know the process is going on, never mind what it actually entails. And even though politics are often involved, problems with the system don’t usually come to light unless something out of the ordinary takes place.

Like having a popular and seemingly competent local attorney turned down for a judgeship not once, but twice.

New Jersey does it differently

Another state that appoints judges is New Jersey, but instead of having an independently-elected body such as the Governor’s Council with the final say, each judge must be confirmed by the state Senate.

 The New Jersey method is not unlike how we select judges to the federal bench – appointment by the chief executive and confirmation by the Senate – and a constitutional amendment that would accomplish this was heard in joint session of the Massachusetts Legislature last year, but went nowhere. 

Under this system, instead of having entirely obscure elected officials with limited duties, such as governor’s councilors, approve judicial nominees, it’s the better known state senators who have this task. 

Many people know who their state senators are – in The Berkshires, it’s Benjamin B. Downing (D-Pittsfield). He has Boston and district offices, is involved in many issues, both local and statewide, and is out and about in the district frequently.

Few people know or have even heard of our newly elected governor’s councilor, Michael Albano, or the one he replaced, Thomas Merrigan.

All methods of selecting judges are political to some extent, especially where the judges themselves must run for popular election. The Massachusetts system of nomination by a commission, appointment by the governor and confirmation by a separate elected body is sound.

But rather than a little known elected council with too much time on its hands, this final task should be delegated to a more obvious choice, the state Senate.

Posted by Bruce Garlow on February 21, 2013. Filed under Berkshire Beacon Hill Spotlight,Columns,Opinion. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry