Today’s Herald has a story revealing that – surprise, surprise – Mitt Romney cares far more about ideology than about legal ability when it comes to nominating judges.
The story reveals that Romney passed over several extraordinarily well-qualified individuals for a seat on the state Appeals Court, all of whom had been approved by Romney’s own Judicial Nominating Commission. The list of also-rans includes Peter Sacks, a long-time assistant Attorney General in the government bureau who has probably argued hundreds of cases before the Supreme Judicial Court and other state and federal appellate courts, and who is probably better qualified than anyone in the state to sit on the Appeals Court. The list also includes John Cratsley and Mitchell Sikora, both well-respected Superior Court judges, and Douglas Wilkins, formerly the First Assistant Attorney General under Scott Harshbarger who has himself “argued more than 65 reported appellate cases in the state and federal courts.”
Instead of these folks, Romney nominated Andrew Grainger, who hasn’t litigated a case in ten years, who apparently spent a lot of time in the 1990s running a boat company, and who was a consultant for Bain, Romney’s former employer. I’m sure Grainger is a bright guy, but in terms of qualifications for the Appeals Court he can’t touch the four candidates Romney rejected. Perhaps most importantly to Romney, Grainger is the president of the New England Legal Foundation, a pro-business outfit that routinely takes strongly anti-regulation and anti-consumer litigation positions. No one could accuse Grainger of not having an agenda. And apparently, people with an agenda is what Romney is looking for in judges. How disappointing, if unsurprising.
For comparison purposes, it is worth bearing in mind the record of Romney’s Republican predecessors. Whatever you may think of Bill Weld’s and Paul Cellucci’s other accomplishments, they generally did an excellent job appointing judges. For example, Chief Justice Margaret Marshall, the author of the Goodridge decision (among many others), was appointed to the SJC by Weld and elevated to Chief by Cellucci; Roderick Ireland, the first black SJC Justice and probably the second-most “liberal” Justice on the Court after Dukakis appointee John Greaney, was also named to the SJC by Weld (Dukakis had appointed him to the Juvenile Court and the Appeals Court years earlier); and Justices Martha Sosman and Robert Cordy are both exceedingly well-qualified centrists named by Cellucci.
I’m sure Andy will do a heckuva job.
The reason our Constitution gives politicians the power to appoint judges is so that they will choose people they like. Your comment suggests there is some independent extra-Constitutional standard for evaluating judicial competence — apparently based primarily on the number of cases a lawyer has argued before appellate courts. If such a standard can even be said to exist, it is not, as I wrote, in the Constitution. The proper response if you don’t like Romney’s judicial picks, I suggest, is to run for Governor yourself (or support a candidate), rather than advance some murky standard for what is ultimately a political appointment and job.
Bob, are you saying that criticizing the Governor on the quality of his judicial nominees is not a proper response?
kinda, we should have know what type of judges he’d pick after the pairs figure skating judge fiasco. Seriousy it illustrates the important of electing a DEM to that position.
David pointed out Weld’s great picks.
How do we know Deval won’t just appoint corporate lawyer types and Reilly will only appoint prosecutors (which he will)
it doesn’t or KNOW it doesn’t? Your helping to make the point, Weld’s social psotions weren’t exactly mainstream Republican.
First, as you well know, Republicans make a big show of saying that they want judges who are superbly qualified in an objective sense, and that they want judges who will “interpret, not make” the law and who aren’t going on the bench to push an agenda. This kind of crap shows that it’s a bunch of hokum – what they want is judges with an agenda that matches theirs rather than someone else’s.
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Second, my post nowhere says that Mr. Grainger isn’t qualified to sit on the Appeals Court, or that I’d urge the Governor’s Council to reject his nomination. It just says that the other candidates who applied, and who got through Romney’s own selection process, are better qualified, and I would suggest that there are standards for evaluating the relative merits of judicial candidates beyond whether they curry the favor of a particular elected official. It’s a job like any other: there is a set of qualifications that are generally agreed upon in the relevant industry. And, like every other industry, the best-qualified person doesn’t always get the job for a variety of reasons.
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In any event, not to worry: I will without question be supporting a candidate for Governor who is neither Mitt Romney nor Kerry Healey, and I will be supporting a candidate for President who is not Mitt Romney. In the meantime, I think it perfectly appropriate to call attention to the fact that, with respect to judicial nominations, Republicans do not come close to practicing what they preach.
Well, I still think you should consider your own run, if only to ensure we get judges who by definition meet your standards of qualification. To Ernie’s question, I’m saying that the most effective criticism of Romney’s appointments is not that they are more or less “qualified” when the nature of that qualification is judicial experience or ratings by some association of lawyers or anything else that speaks to their familiarity with the judicial process per se. Being a judge is a political job, it is about making laws. The critical question when one assesses a judge is therefore: what are their political views. The crucial criticism, likewise, is: what are their political views.
Being a judge is a political job, it is about making laws.
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That is of course a monumentally debatable point as a general proposition. However, in the case of the state Appeals Court, it really is not accurate (it may be a political job in the sense that political entities are responsible for filling the vacancies, but it is not about “making laws”). Believe it or not, the craft of judging actually requires some ability, some skill, and some practice – and I’m talking now about resolving complicated contract disputes, or hearing appeals of criminal trials on technical evidentiary or sentencing issues, or analyzing complicated tax statutes, or the like. That’s what the Appeals Court does every day. It almost never has the opportunity to resolve wide-open constitutional questions that could verge on “making laws,” because cases of that type are transferred to the Supreme Judicial Court almost 100% of the time (the SJC has the ability to transfer cases to itself even if neither party has asked for that to happen).
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So to say that the only thing we should care about with judges is their political views because the only thing judges do is “make laws,” IMHO, misunderstands what the craft of judging consists of. 98% of the time, judges resolve disputes between parties in a way that doesn’t really affect the rest of the world very much. And that remaining 2% of cases, at least in this state, exists only in the highest court, not in an intermediate appellate tribunal.
means that agenda doesn’t matter on the Appeals Court. It does, for two reasons. First, often people with well-developed agendas haven’t taken the time to hone their basic skills to the extent that less ideological lawyers have, so they will be less likely to decide cases properly. Second, and relatedly, even routine contract disputes can be turned into ideological battles if the judge sees the dispute in some broader social context rather than simply deciding the case presented. Both of those outcomes – poorly decided cases and cases decided on the basis of ideology rather than facts and settled rules – tend to bring the judiciary into disrepute and undermine respect for the judiciary, which in turn undermines the rule of law. Which is a bad thing.
“Less likely to decide cases properly.” I assume Andrew Grainger, to return to the case in point, will decide cases more properly, as far as the Guv is concerned, than anyone else. I submit there really is no such thing as a poorly decided case in the sense in which I think you intend the phrase (poorly reasoned, conflicting with superior precedent, badly written, lacking a basic understanding of the judicial system, etc. … OK, I’ll give you illegible and incomprehensible) — all there are are cases that comport more or less exactly with the political biases of the judges … marriage equality today, maybe not tomorrow … abortions today, maybe not tomorrow … clean air today, maybe not tomorrow — all of these decisions can be changed. Which is why, although I disagree that there is a worthy external “judicial” standard by which we can assess the propriety of decisions, I agree 100% with your submission that agendas matter!
we’ll have to agree to disagree on this one.
But so what?