In a 4-3 vote, the Governor’s Council has approved Governor Patrick’s nomination of Appeals Court judge Fernande R.V. Duffly to the Supreme Judicial Court.
The reasons given for the three “no” votes range from barely plausible to laughable. In descending order, we have the following: (1) Councillor Iannella didn’t like Duffly’s rulings with respect to father’s rights. I suspect he was wrong on the merits (Councillor Caissie, who voted yes, said that witnesses mischaracterized her rulings, and that “probate cases and custody cases are so fact-specific … when you read the facts in the cases, she applied the law”), but it’s at least plausible to vote against a nominee because of a large issue like that one. (2) Councillor Merrigan described Duffly as “a well-intentioned, well-credentialed, thoughtful, intelligent judge,” but voted “no” apparently because of a single ruling in an arson case. Basing a “no” vote for a well qualified nominee on a single case out of a long career that encompasses hundreds if not thousands of opinions is a bit silly. (3) Councillor Cipollini, the Council’s lone Republican, voted “no” because, in his view, Duffly is “too liberal,” because she “bends the law to fit her opinion,” because “she tries to legislate from the bench, she is like an activist judge,” and because she supports the SJC’s gay marriage decisions. These views are too embarrassing to merit further comment.
The Governor’s Council is an archaic remnant of a bygone era that no longer serves any useful purpose – particularly since the vast majority of its functions were stripped after a corruption scandal back in the 1960s or ’70s. The one thing of any significance that it does – approve judges – it does not do especially well, and that function could easily be reassigned to the state Senate. Furthermore, I’d wager that something like 99% of Massachusetts residents cannot name their Councillor. It is long past time to abolish the Council by constitutional amendment, thereby streamlining the government and saving a few bucks in the process.
Please, let’s put the Council out of its misery, before it really embarrasses itself.
is also a republican. Cippolini is not the lone republican. That’s Holly Robichaud.
Each Council district consists of five Senate districts, of which there are 40 total.
Cippolini and his brother both ran for the seat, winning the Democratic and Republican primaries respectively. If the Dem Cippolini had won, he’d probably be there as long as he pleased, but since the GOP brother won, he might get swept out by party line voting. Both of them ran on identical socially conservative platforms.
Thanks for the correction. I’m actually pleased – it strengthens my point.
…and stand by my previous support for the Governor’s Council. The strongest argument in favor is that judicial nominees don’t get held hostage to other political considerations as sometimes happens in the US Senate. Plus I LIKE our colonial traditions, darn it! Lack of name recognition is a pretty lame excuse to eliminate something IMO. If anything I would ADD to their advice and consent functions over gubernatorial appointments.
If we’re electing these people to approve our judges, but no one knows what they do, or who their councilor is, how do we expect them to make an informed decision when they get into the ballot box?
What I was saying is that’s not an excuse to get rid of the body. I don’t know how to fix it. We can’t make the press cover them. They often get challenged so there’s some attention during campaigns. You would think that their role confirming judges would be worth some earned media given how hot some nominees can be.
Meanwhile, State Senators are absolutely people who constituents know about and can hold accountable.
What percent of MA residents 18+ know the name of their State Senator?
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p>20%? 40%?
Here’s the right one:
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p>What percent of the voting population?
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p>60%? 80%?
…but I still think your answer is a bit optimistic.
Bear in mind, I’m not suggesting that such a high percentage of voters would know their state senator well, but I would suggest 60% of frequent voters would at least know of the person, particularly when elections roll around. Speaking from experience, when going from voter universes in local campaigns in a general election, most people know who the pol is when asked about the race. Granted, those are the people who vote at least half the time, but if those people can attach a name to a seat at the ballot box, they’re much more likely to be able to hold those people accountable when it comes time to vote if something happened re: that candidate that really didn’t sit well with them.
Lots more people would vote if they knew more of the candidates names and what they were about. It’s a circular problem to be sure, but Joe Shmoe is everybody’s state senator in the district, not just the frequent voters.
They’re probably the least important and least well known candidates on the ballot. State Reps, State Senators, Sherrifs, etc. all have more important jobs and are more likely to interact with voters. People can only keep track of so many different politicians.
There’s a general lack of interest in local/state politics, nationwide. It isn’t because people can’t keep track of the politicos… hell, the average facebook user has 130 friends. Surely they can keep track of the two dozen-ish state, county, and district politicians should they choose to. You and I do, and we’re not particularly remarkable people.
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p>The problem is not brain capacity nor availability of information. The problem is simply a lack of interest.
I vote in every election, I volunteer dozens of my hours every campaign and I’ve even been known to help run campaigns professionally from time to time. I have no freaking clue who my County Clerk is, and the only reason why I know so much about the Governor’s Council is because so many of them are so terrible (including my own).
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p>”Problem” isn’t the right word for it, because it’s intrinsic to human nature. Of course, we all could care and know about each and every elected official, I could even know the names of all the Town Meeting members in my town if I wanted to… but we each have our own interests, and even within those interests, prioritize certain things above others.
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p>The problem, at the end of the day, isn’t lack of interest. The problem is these positions shouldn’t actually be elected positions. David’s absolutely right about the Governor’s Council — it’s a relic of the past and its powers should be given to the State Senate. The responsibilities of the Governor’s Council are so few that they do not merit an office, which is why people don’t pay them any attention, which in turn makes them ripe for abuse and corruption.
if these are positions in which people don’t even know who they’re voting for (and they don’t, 99% of the time), then it’s not a position that can be held accountable.
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p>David’s absolutely right on this one.
People like us, and especially you with your own blog, are in a better position than most. Am I correct that you live in Mary Ellen Manning’s district? If so we had a chance with Jason Panos, whom I supported, largely because he wanted to make the Governor’s Council more transparent.
I was behind Panos, spoke about him to my friends and family in the district, and he was up against one of the hackiest hacks on the entire council.
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p>But no one cares about the Governor’s council, so most people are either not going to vote for it at all, or they’ll vote for whoever the incumbent is, not knowing anything or caring anything about it.
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p>That race is the perfect example for why the council shouldn’t exist. A far better candidate, who was all over the place and actually had something of a campaign, couldn’t even come close to defeating one of the hackiest hacks in hacktown who had barely a whimper of a campaign, but got to have “incumbent” written after her name.
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p>The outcome had nothing to do with either of the candidates and the kind of races they ran, and it had everything to do with the fact that people don’t give a crap about the Governor’s Council — most don’t even know it exists. I submit that any elected office that most people don’t know exists shouldn’t exist at all. Transfer the responsibilities elsewhere, if it’s a job like Governor’s Council, or make the position appointed (if it’s something like Clerk).
This is like my lone wolf argument to defend the filibuster, that said I agree with David on this. It lost those other privileges since its such an unknown body it can get away with quite a bit, as it did with a pay-to-play scheme back in the 60s and 70s, and another problem under Ed King in the 80s. Also considering how bloated their salaries and pensions and how little they meet to actually discuss issues, its really a waste of time. Lastly at the one function they do perform they perform terribly. Most of these guys aren’t even college educated let alone have the legal education and skills required to make these kinds of decisions. Most of them are local party hacks that cash out. They run in massively low info races and tend to win due to blind party line voting. In the last competitive Gov Council election in my district, I voted against the guy who robo-called my house and against the incumbent, voting instead for a Boston firefighter who lost and probably would’ve done a terrible job. Since then, I write in my openly Stalinist friend from Baltimore, MD who lives in Chicago since he would love a job where he would get over 100k a year for not showing up and he would likely vote against all the nominees since he dislikes judicial decisions made outside of a local Politburo, and has as many qualifications as any of the morons on there right now.
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p>I bet if we ended it 89% would respond “didnt know we had one”, and the other 9% would be overwhelmingly in favor of getting rid of it. Its a joke, time to end it. This hasn’t made sense since we got rid of the Royal Governor in 89′ (thats 1789)and 48 states function without it just fine, and NH will likely kill its version.
They make $26,000 a year. This job is by no means “cashing out.”
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p>The system is far from perfect, but thank god we don’t elect our judges and thank god the Senate doesn’t have appointment power.
…the vast majority I believe are lawyers.
And, what about bennies and pension?
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p>I’m not arguing for or against, merely curious?
$26,000 per annum gets you $500 per week. They meet Wednesdays at noon, but I’m not sure for how long or if absolutely every week. Beyond that there is a range of hours worked per week based on the workload. I suggested to Jason Panos that a possible reform would be for the Council to meet evenings or Saturdays and drop compensation to stipend levels, which would save money and allow for a broader range of people to be elected, but he said Wednesdays at noon was constitutional.
For meeting one day a month.
Do we really want to give the state senate more authority in this area?
I agree that the recent actions of members of the Joint Judiciary Committee and the Legislature, at large, have not warranted much confidence that placing the critical judicial confirmation responsibility in their hands would be a significant improvement. The roles played by individual legislators, including committee chairs and House Speakers, in promoting patronage hires at the Probation Department and refusing to conduct any legislative oversight of Department operations should give one pause in granting additional review and oversight responsibilities to the Legislature.
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p>If, however, the Governor’s Council is to perform its judicial confirmation review responsibilities competently, then the Councilors need the human and financial resources (i.e. adequate legal staff) necessary to review the plethora of judicial opinions, legal writings, and background information of nominees. Who really believes that Patrick Leahy or Jeff Sessions of the U.S. Senate Judiciary Committee actually reads all of the opinions, legal writings, and background information of the Supreme Court and lower federal court nominees that come before the U.S. Senate Judiciary Committee?
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p>Either provide the Governor’s Council with the professional staff necessary to review fairly and comprehensively a judicial nominee’s opinions, writings, and background or abolish the Council in its entirety. Otherwise, the individual decisions of the Councilors will continue to be subject to the type of capricious whims, misunderstandings, and ridiculous objections that seemed to be the justifications for the “no” votes against Judge Duffly’s appointment to the SJC.
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p>Finally, I would like to see the voters of Massachusetts have an opportunity to pass judgment on all appointed justices in a recall election held at a regular six or eight year intervals. The more troublesome judicial problem we have in Massachusetts is that even after several years of proving their prejudices, incompetence, poor temperament, or corrupt behavior on the bench, it becomes nearly impossible to remove a robed miscreant from the state judiciary. For example, why, after the scathing indictment of his mismanagement of the Probation Department in the Ware Report, is Judge Mulligan still receiving a paycheck from the Commonwealth of Massachusetts? Let’s add judicial recall to the list of constitutional revisions necessary to reform state government in Massachusetts.
…but I would never want to subject judges to popular recall. Judges are sometimes duty-bound to make unpopular decisions, and this won’t happen if we democratize the judiciary. There are ways to remove judges by address or impeachment.
was impeached by the House and convicted by the Senate or removed by joint address of the Legislature. The last state judge to resign as a result of an investigation from charges of the Commission on Judicial Conduct was Judge Maria Lopez in 2003. I can’t believe that there has not been another sitting judge in Massachusetts since 2003 whose judicial and personal actions warranted removal from the bench.
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p>Recall offers the opportunity for the citizenry to register their disapproval of incompetent, intemperant, corrupt or ideologically extreme judges, when the Legislature and the Commission on Judicial Conduct refrains from investigating and charging judges for malfeasance because of their shared membership in the political/legal establishment.
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p>I sure wish we had the power of recall to remove Justices Clarence Thomas and Antonin Scalia to prevent them from issuing any more “unpopular decisions.”
…but I stand by my previous comments about desirability due to my high regard for independence of the judiciary, even from the people. I probably don’t like Scalia’s and Thomas’ decisions anymore than you do, but I don’t want to recall them either.
It’s called Judicial Retention.
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p>The appointment process remains the same. A judge serves 7 years before being subject to retention. Then, a supermajority must vote NOT to retain the incumbent judge. It’s a compromise between absolute lifetime appointment and outright election of judges, both of which are bad ideas.
Yes, I agree judicial retention elections are the preferred avenue for instituting some much needed accountability for Massachusetts judges. I mistakenly termed the process you are describing as “recall.”
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p>I hope progressives, Republicans, and Independents would mobilize to support such a much needed constitutional revision.
…even a retention election, you make it a political post.
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p>By which I mean you make judges raise money for their positions, and you make them appeal to the general masses for their positions. You make them afraid to make the unpopular decisions. Look at the judges in Iowa who voted for gay marriage. Three of those judges were up for retention elections, and they lost, due to this vote. Is that what you want for Massachusetts?
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p>Judges need to be independent. Period.
The complete, unchecked independence afforded to Judge Mulligan and the late Judge Irwin contributed directly to their complicity, by one lifetime judicial appointee, (Mulligan), and the egregious participation, by the other (Irwin), in the Probation Department scandal. And, if you don’t believe me, you can read about the excesses caused by unrestrained judicial independence in The Ware Report, commissioned by the Supreme Judicial Court, the state’s highest court, which not-so-coincidentally currently has failed to meet its statutory responsibility to hold Judges Mulligan and Irwin for their disgraceful behavior. Of course, the SJC is also composed of judges who enjoy lifetime appointment until they reach the mandatory retirement age of 70. I just don’t agree enjoying a lifetime judicial appointment, without having to face a periodic judicial retention election, guarantees a higher quality and fairer level of justice in the state.
…retention campaign is such a good idea. State Senate can appoint them for life…get rid of crazy Governor’s Councillors.