SJC pick Lowy says he’s learned from experience, mistakes as judge

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STATE HOUSE — As the University of Massachusetts student swept the hallways of the Supreme Judicial Court during summer break in the early 1980s, he had no inkling that he would be angling to return to those hallways some three decades later.

If David Lowy does work at Pemberton Square again, it will be with a robe on. Lowy sat before the Governor’s Council on Wednesday to make his case to be confirmed as a justice on the state’s highest court, citing his experience throughout the state’s court system and the lessons he’s learned from the bench.

“I have witnessed the impact of poverty, discrimination, addiction and mental health challenges in the lives of thousands and thousands of people. What I have come to learn is that few people — even the overwhelming majority of people we sentence in Superior Court — are bad human beings,” Lowy said. “I am not disavowing personal responsibility with this observation, I am only noting the importance of compassion and empathy. While we cannot always understand other people’s problems, it is incumbent upon a judge to try.”

Lowy, a Superior Court judge since 2001 who prosecuted gang-related cases as a Suffolk County assistant district attorney and served as a district court judge previously, is the second of Baker’s three nominees to face the Governor’s Council for confirmation to the SJC.

In introductory remarks, Lowy described himself as the son of hardworking parents and the grandson of European immigrants who escaped the Holocaust and settled in Revere. His parents impressed upon him the importance of hard work, and he still lists his first job on his resume.

“It began as a vendor at Fenway Park before Fred Lynn and Jim Rice were rookies,” he said, indicating that he hawked concessions at the ballpark before 1975. “It ended with Bruce Hurst beating Doc Gooden in Game 5 of the 1986 World Series, and I won’t talk about Game 6 or Game 7.”

He described for the council how he learned from mistakes early in his tenure as a judge, spending too much time focusing on caseload management in Lynn District Court than on other aspects of the job.

“I learned as much from what I did wrong in that position as from what I did right,” he said. “I was full of enthusiasm, unlimited energy and a desire to address systemic challenges in the administration of justice in the courts.”

When asked by a councilor, Lowy said he supports same-sex marriage and views the matter as settled law. He is pro-choice, he said, and opposes mandatory minimum sentences except in cases of first- or second-degree murder or the license loss period associated with a conviction for driving under the influence of alcohol or drugs.

Asked about the death penalty by Councilor Robert Jubinville, a criminal defense attorney, Lowy said he has “a deep philosophical ambivalence” to the issue as a question of public policy. But, he said, the death penalty makes sense in “the most narrow” of circumstances and never in cases that rely on eyewitness identification or a confession.

“I think that the death penalty is appropriate in rare instances involving terrorism, the murder of a police officer … people who are convicted of first-degree murder who commit first-degree murder in prison,” he said. “I don’t say that as a matter of public policy or constitutional analysis. Quite frankly, I am ambivalent despite how much thought went into it as a matter of public policy.”

Despite discussing his personal views and opinions on some issues, Lowy told the council that his own beliefs will have no bearing on his decisions as an SJC justice.

“I need to say — and I mean this with every fiber of my being — my own personal views will have nothing to do with how I infuse normative values into the open-ended provisions of the text of the Constitution,” he said. “It never has, it never will. It will have nothing to do with what I do. That is not appropriate.”

The hearing began Wednesday morning with Baker introducing Lowy to the council as “somebody who I’ve known for…let’s just say a very long time.”

Lowy worked with Baker in the administration of former Gov. William Weld as deputy legal counsel before Weld put him on the district court bench in 1997. Lowy’s wife, Virginia Buckingham, also worked for Weld as chief of staff and campaign manager for Weld’s 1996 U.S. Senate race against John Kerry before running the Massachusetts Port Authority. The late Gov. Paul Cellucci elevated Lowy to the Superior Court in 2001.

“He is somebody who literally at every step along the way throughout his professional career has demonstrated a sense of fairness, and a high degree of intellect and thoroughness in everything he’s done,” Baker said, adding that Lowy has served in the superior and district courts with “enormous distinction.”

SJC Justice Robert Cordy, whom Lowy would replace on the high court if he is confirmed, said Lowy is ready to take on the responsibilities of the state’s highest court.

“I cannot think of a finer or more prepared person for the position of associate justice of the Supreme Judicial Court of Massachusetts,” said Cordy.

Like Baker, Cordy got to know Lowy while working in the State House, both as legal counsel to Weld. In the governor’s office, Cordy said, Lowy was “known for his integrity and thought, diligence and his insights.”

“There seemed to be no problem he could not wrestle to the ground even if it took all night to do so,” he said.

Outside the courtroom, Lowy has taught as an adjunct at BU School of Law, Suffolk University Law School, and the New England School of Law.

The council heard from District Court Judge Cesar Archilla, who said his own legal career was launched after having Lowy as a law school professor in 1997.

“Even back then, he was impressive not only for his intellect and teaching style, but for his zealousness. His ability to delve into intricate constitutional issues, his nuanced knowledge of the law and more importantly his ability to effectively communicate that to his students left an indelible impression,” Archilla said. “It did on me, and it changed the course and trajectory of where I was going. I know that it was one of the reasons why I acquired a love of criminal law and became a litigant.”

The council planned to question Lowy in an afternoon session, with each councilor taking a turn to ask questions, probe the nominee’s judicial history, pose hypothetical situations and seek clarification on issues. Councilors said the hearing could stretch into Thursday if necessary.

The eight-member elected Governor’s Council has confirmed one of Baker’s three SJC nominees, Frank Gaziano, to a position on the SJC bench. The council is expected to hold a confirmation hearing for the third Baker nominee, Kimberly Budd, in early August.

— Written by Colin A. Young

Copyright State House News Service