[NOTE: This piece ran as a letter to the editor of Massachusetts Lawyers Weekly in its December 2, 2013 edition, under MLW’s chosen title “Council Embarrasses Self By Humiliating Nominees”. We re-produce it here in its original form, and with our given title.]
By William M. Levine and E. Chouteau Levine
We read the lead story in the Metro section of the November 21, 2013 Boston Globe, titled "Ethnic tensions flare at judicial meeting", by Michael Levinson, of the Globe Staff, with distress and embarrassment. As practicing family law attorneys in Massachusetts for 44 years combined, one of us as a Probate and Family Court judge for 10, and the last two years solely as a mediators, masters and arbitrators, we have both watched and participated, sometimes in horror, as the Governor’s Council humiliated nominees to the bench. Most often, this rite of passage resulted in confirmation of the governor’s designates: an irritating personal experience for the successful nominees; but one consigned the memory drawer of unpleasantness, dubbed the price of service. On some occasions, the nominations failed, with embarrassed candidates resuming professional lives, disrupted, and in some cases in tatters, because of this demanding, interminable and quite public process.
These lawyers, approved and otherwise, had all been vetted previously by a non-partisan process endorsed and utilized by both major political parties, of several decades’ standing. The Judicial Nominating Committees reviewed, interviewed and debated each of them, informed by enormous paper applications, professional and personal references, member-driven due diligence and state police investigation. They were all reviewed and interviewed by the Governor’s counsel, and reviewed and interviewed again (admittedly, an often pro forma step) by the governor him or herself. Then came the dreaded trip to the Governor’s Council, a constitutional body of politicians elected in 8 districts statewide, after down ballot and mostly unnoticed campaigns.
We have attended many of these hearings. Mostly, we went as supporters of a qualified nominees, in hopes that it “wouldn’t be so bad” for them, and providing requested backing as observers. One of us was the subject of such a hearing, who survived the process intact. Subsequently, when “word” filtered to her from a sitting counselor that she should not appear before this body again (for nomination to another seat) because of a mildly controversial trial decision that she had entered, memories of the first experience revived, and the message was heard. We asked each other then, and ask it now here (as lawyers ask each other all the time): why would anyone subject himself or herself to this process?
Now, for the Globe story. Joseph S. Berman, of whom we knew nothing before last week, offered himself for service to the Commonwealth as a justice of the Superior Court. For today, he embodies the old saw from Claire Booth Luce: "No good deed goes unpunished." The nomination, according to the paper, is dead, despite Governor Patrick's tactical delay to avoid a losing vote. We have all lived this movie before, most memorably for our end of the bar and bench early in this decade, when the Governor’s Council internally, then publicly (Howie Carr? Really.) trashed a highly experienced and respected lawyer who had the misfortune to win nomination as a justice of the Probate and Family Court. First, he was nominated, then skewered by the Governor's Council and finally abandoned by the administration.
Today's version of that earlier travesty is reportedly based on three things: 1) that Mr. Berman has been a prominent part of the Anti-Defamation League; 2) he has contributed money, some would say a lot of money, to Democrat political candidates in the state, and 3) this lawyer once represented a Guantánamo defendant. Now, there may be other reasons that were not reported in the Globe piece, and we have long since earned a healthy skepticism for news reporting, but the story is so unsurprising and so consistent with the history of this blighted body, that it rings true.
Does the Governor’s Council truly believe that these are disqualifying biographical facts when addressing the capacity of a lawyer to discharge the sober responsibilities of the civil and criminal docket of the Superior Court? In a world where ethnic tensions threaten survival of nations and peoples, is it this body's job to fan those flames here, on the matter of fitness to serve as a trial justice? This has nothing to do with whether or not it was fair, smart or appropriate for the ADL to mince words on the Armenian genocide (we believe it was not). In a society where the United States Supreme Court has equated campaign contributions to free speech, is at the Governor’s Council’s job to punish it? And, in a constitutional system where every criminal defendant is entitled to representation, no matter how odious the accused or the crime charged, is it this body’s duty to condemn a man for following the example that we now celebrate in John Adams’ principled defense of British soldiers after the Boston massacre? Do we not want judges with courage?
Once again, it appears, the politics of the petty trumps the public good. The Governor’s Council has debased the judicial confirmation process for far too long. It is unfit to serve its constitutional duty. Massachusetts is the envy of lawyers and judges across the nation because of our ability, more than most, to insulate our judges from political crosswinds. An elected judiciary that looks over its shoulder when making controversial decisions, or to practicing lawyers for campaign contributions, is the bad alternative. “Life” tenure results in a few long-term mistakes, but it is, by and large, the best system going. But, its success depends on a highly motivated few who are willing to run the gauntlet of an unconscionably long vetting process, the financial challenge of trying to earn a living when people know about a pending judicial application and the risk, in the end, of public humiliation and rejection for reasons with no justified rhyme or reason from minor politicians.
William M. Levine and Hon. E. Chouteau Levine (Ret.) are private dispute resolution service providers in Westwood and Northampton, MA. Judge Levine was Circuit Justice of the Probate and Family Court from 2001-2011.