In December the Boston Globe reported that Governor Deval Patrick has not appointed as many people of color to the bench as some of his supporters might have hoped. The lack of judicial diversity in Massachusetts is a significant problem in and of itself. But it is also a symptom of flaws in the process by which Massachusetts governors choose judges. And there is a connection between the process and the dearth of applicants of color.
To secure a place on the bench, an applicant has to pass muster with three different groups, namely the Judicial Nominating Commission (JNC), the Governor's Council, and the Joint Committee on Judicial Nominations. Each of these bodies takes soundings from local attorneys who know something about the applicant, and rightly so. After all, it would be foolish to ignore the opinions of the very people who have first-hand experience of the applicant's demeanor, temperament, and legal acumen.
Of the three bodies, only the Governor's Council is elected. It is no secret that Massachusetts governors sometimes find the Governor's Council a source of frustration. But, frustration notwithstanding, governors are grateful for the Council because it helps them spread the opprobrium when judges end up embarrassing themselves. In stead of shouldering all the blame for a judge who fails to demonstrate sufficiently judicial temperament (e.g. yelling at people from the bench, showing up for work drunk, or showing up for work only rarely) a governor can point to the elected Governor's Council and the unelected JNC and Joint Committee on Judicial Nominations. Together, these bodies ensure that the buck merely passes the corner office without stopping there.
On the surface this three-tiered screening process appears several steps removed from the political fray and effectively hack-proof. But there is something about the process that deters some well-qualified attorneys of color from applying for judgeships.
What is that "something"? Based on my experience, I believe it is the knowledge that the real decisions take place long before the applications even arrive at the JNC. All too often, governors (including Deval Patrick) cede de facto control over the judicial-nomination process to politically powerful, unaccountable local cliques.
One notable example of this phenomenon was in the news recently. Dan Ring's story in The Republican describes the original 3:3 vote at the Governor's Council meeting over the nomination of Attorney Bill Mazanec, a friend of the current Governor's Councillor Tom Merrigan and his brother, Register of Probate John Merrigan. The fact that Mazanec was not simply part of the wider Merrigan clan but was actually renting office space from Tom Merrigan helped cause three councillors to pause for thought. It was a short pause; one week later the Council voted 5:1 to confirm Mazanec.
How did Attorney Mazanec emerge from the JNC in the first place? Well, because the process is secret we can only speculate. My own speculation, which I base on my stint on the Council and several years practicing law in Western Massachusetts, is that Mazanec was the only local applicant because other well-qualified attorneys from Franklin County declined to put themselves forward. The reason those other attorneys held back (and, again, I am speculating) was that they knew Mazanec, and only Mazanec, had the blessing of the Merrigans. For these local lawyers, dependent to varying degrees on the goodwill of the Merrigans, applying would not only have been fruitless. It would have seriously damaged their political health.
Governor Patrick is not merely turning a blind eye to the expansion of local fiefdoms, but is actively encouraging it. In the short term this may make for an easier ride for him -- and for Lieutenant Governor Tim Murray -- but there is a price to be paid in the longer term. That price is the decline in high-caliber applicants from diverse backgrounds who are not indebted to the local bigwigs.
The message to would-be judges is clear: Only those who are acceptable to the local establishment need apply. Otherwise, forget it. Certainly, this affects every lawyer who is not part of the club, regardless of race and ethnicity. But in areas where the legal-political establishment is predominantly white, the message has a disparate impact on people of color.
Testy relations with Speaker DiMasi and the recession have ensured that Governor Patrick has not been able to deliver much of what he would have liked. He innoculated his supporters about this likelihood early on and took care not to over-promise. So it is particularly disappointing that Patrick has not made more progress in the area of judicial appointments, a realm where he does not depend on the cooperation of the legislative branch. But given his administration's decision to roll over for the good ol' boys, no one should be surprised.
Full disclosure: After Deval Patrick's election (and my loss to Tom Merrigan) in 2006 I wrote to the transition committee and then to Deval's chief legal advisor asking for the job of promoting diversity in the judiciary. I haven't heard back yet, by the way.