Wanted: Three judges to replace 40 years of experience
By State House News Service | February 11, 2016, 13:18 EDT
STATE HOUSE — Unlike a sports team that loses some of its top players to free agency, the Massachusetts Supreme Judicial Court can’t take a year to regroup, make a few roster moves and get the team back into contention the following year, regardless of how many rookies will be pressed into the starting lineup.
So with the announcements in the last week that three of the highest court’s judges — justices Robert Cordy, Francis Spina and Fernande Duffly — plan to retire after this judicial season, the SJC’s player-manager is echoing the New England Patriots’ “next man up” mantra.
“This is an unusual and obviously important transition. We don’t have the luxury of having a rebuilding year at the court,” SJC Chief Justice Ralph Gants said. “We intend to be fully operational and providing quality opinions and excellent superintendence when the court year begins in September, but there is a lot of hard work that has to go into doing that.”
The three freshman SJC justices on the bench when the court begins its next session in September will have become used to writing high-quality opinions, giving and taking feedback from the other justices, and doing all of that in a collegial, respectful way, Gants said.
“Bringing in three new justices obviously will change the court. I am committed — and I know the governor and his legal counsel are committed — to maintaining the excellence of the court and I am committed to maintaining the culture of the court.”
Gants, who has sat on the SJC since 2009 and served as chief justice since 2014, said that the turnover of even one justice has an impact on the court’s chemistry and its jurisprudence.
“When I first came on the court, Chief Justice (Margaret) Marshall told me every new judge changes the court,” he said. “Having seen new justices Duffly and (Barbara) Lenk and (Geraldine) Hines come on the court, I have clearly seen the truth of that.”
Gov. Charlie Baker, who suddenly needs to produce three high court nominees, has named a 12-member Supreme Judicial Court Nominating Commission to recruit and screen applicants. Baker’s chief legal counsel Lon Povich will co-chair the commission with Paul Dacier, chair of the 21-member Judicial Nominating Commission (JNC) and executive vice president and general counsel of EMC Corporation.
And because two more SJC judges — Margot Botsford and Geraldine Hines — will reach the mandatory judicial retirement age of 70 before the end of Baker’s term, Baker is now assured the opportunity to nominate five justices to the seven-justice high court in a single term, shaping the court and its judicial philosophy.
“In effect there is going to be a brand new court, which is a great upside for a governor to really leave his indelible mark for years to come,” Martin Healy, chief legal counsel and chief operating officer of the Massachusetts Bar Association, told the News Service on Wednesday. “The only negative I see is that the court, just by the hemorrhaging of judges, is going to lose a tremendous amount of institutional knowledge that comes from individuals who have served on the bench for years.”
Gants said there “absolutely” is some concern about an institutional knowledge brain drain as seasoned jurists depart from the bench.
“We are losing probably about 40 years of institutional experience when you combine the time of Justice Spina, Justice Cordy and Justice Duffly. Justice Cordy has institutional experience not only here but also from his time as the governor’s legal counsel, so he gives us that additional perspective,” Gants said. “You lose a little bit of that, but we do have a staff that’s been here a long time and they help us in regard to maintaining the institutional memory of the court.”
Though it may seem unprecedented at first, a high level of turnover on the SJC is not without precedent, Gants said. In the span of seven months between 2010 and 2011, two new justices were appointed and one was elevated to chief justice. In a 16-month span from 1999 to 2001, four new justices were appointed to the court and one was promoted to chief justice, according to information provided by the court.
Baker, though, will have to appoint at least five justices to the SJC in a span of roughly 20 months between now and October 2017, when Hines will reach the mandatory retirement age of 70.
Gants said he did not know of any systemic issues that would persuade justices Cordy and Duffly to step down before reaching the mandatory retirement age, other than the chance for a new beginning.
“They’re all leaving for different reasons, but I think all of us, health permitting, expect there will be at least one more chapter in our professional lives and the question of when we need to leave in order to make sure that next chapter is the most productive sometimes means you may need to leave before 70,” said Gants, 61. “It’s a very personal decision among judges.”
He added, “None of us are going to be leaving here to play bridge.”