We were pleased to see some BBA leaders appointed to key roles when Governor Charlie Baker announced the make-up of his reconstituted Judicial Nominating Commission (JNC). In case you missed it, BBA President Emeritus Paul Dacier and former BBA Council Member Roberto Braceras were both named to top posts – Dacier as Chair and Braceras as Co-Vice Chair of this important group.
You may also recall that about one month ago we discussed some changes to the JNC by Governor Baker. Executive Order #558, released in late January, changed the language used to rate candidates (from “highly qualified,” “qualified,” or “less qualified” to “well qualified,” “qualified,” or “not qualified”, in keeping with the language used by the Joint Bar Committee) and increased the threshold voting percentages for approval, with 50% (up from 40%) now required to advance to the “due diligence” stage, and 2/3 (up from 60%) now required for recommendation to the Governor.
But what exactly is the JNC, and why is it so important? Most people are familiar with the Governor’s Council and their role as the final review of judicial candidates, but few know of the work that takes place before this step.
In briefest terms, the JNC is a 21-member statewide, non-political, non-compensated body that screens applications for judicial and clerk-magistrate positions. All 21 members are appointed to one-year terms by the Governor, and serve at his pleasure, meaning they can be removed at any time without cause.
Qualifications to Serve
The executive order tasks the Governor with appointing Commissioners who “reflect diversity of race, gender, ethnicity, background, geography, and among Commissioners who also are members of the bar, various practice areas and sizes.” Commissioners must have “demonstrable knowledge of the judicial system and experience in the needs and operation of the Massachusetts courts.” Those who are members of the bar must have at least seven years of practice experience. Those who are not must “be familiar with the attributes that best qualify a person for appointment” to the bench.
Amongst the 21 Commissioners, the Governor also appoints three leaders – the Chair and two Vice-Chairs – who preside at all meetings. The executive order incorporates a variety of measures intended to ensure the fairness of their process, including prohibitions on making political contributions, and on any action that suggests a lack of impartiality.
How it Works
The JNC provides the first layer of review for judicial nominees. It is formally tasked with “identify[ing] and invit[ing] application by persons qualified for judicial office.” Thus Commissioners are constantly on the hunt for talented individuals from all parts of the state who reflect the full diversity of its citizens.
Commissioners conduct a blind initial review of the applications of all candidates meeting minimal baseline qualifications – years of service, residency, citizenship, etc. After discussion, and with approval of at least 1/3 of the Commissioners casting a vote, with a quorum present, an applicant is invited for an interview. Only after applicants have been granted or rejected for an interview are their names revealed to the Commissioners.
The Commissioners must then interview the approved candidates, potentially multiple times, until they make a decision on whether or not to proceed with due diligence inquiries. Interviews last 20 minutes and are conducted by the entire JNC at a regularly scheduled meeting. Moving beyond this step requires approval by at least ½ of the Commissioners casting a vote amongst a quorum.
Essentially “due diligence” requires a thorough researching of the candidate, their history and qualifications. Commissioners seek comments from judges, attorneys, and others about the applicant, and do not limit their inquiries to listed references, frequently going “off-list” to seek out other individuals who know the applicants professionally and personally. It is often a time-consuming and arduous process, requiring Commissioners to comb through extensive amounts of information and prepare written reports of their findings.
Finally, after completing due diligence, the Commissioners deliberate and discuss the relative strengths and weaknesses of candidates, both in general terms, and specifically as they relate to the open judicial positions. A two-thirds vote is required for the Commissioners to forward an applicant’s name to the Governor’s Office to be considered for nomination. They typically provide between three and six names for each vacancy.
After the JNC recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the Joint Bar Committee. The JBC, formally established in 1961, is a 25 member committee chaired on an alternating basis by representatives of the BBA and the Massachusetts Bar Association. It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state. Members of the committee are non-partisan and generally serve for three-year terms. The JBC works with Governor’s Chief Legal Counsel in a confidential capacity to conduct its own independent review in order to provide recommendations as to whether a candidate is well qualified, qualified, not qualified, or there is insufficient information to evaluate the candidate. The committee then communicates its vote the Governor’s Chief Legal Counsel for the Governor’s consideration. After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Commission, or to re-open the application process. When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council.
In sum, we are proud of the judicial nomination, review, and appointment process in place in Massachusetts. It assures judicial candidates are given a fair and thorough review. We are also impressed with the care that goes into crafting each step of the process. This year’s JNC is a great example as its 21 members are experienced and successful lawyers from across the Commonwealth, the legal profession, and demographic groups. They are representative of the state and the profession, and therefore also of the type of bench we would like to see.
While there are not expected to be many judicial openings in the near future, it is important to take the long view on this thorough and deliberative process. As a result, it will be tough to ascertain Governor Baker’s judicial appointment style over the next few months, or maybe even the next year, but we are confident that he will continue to espouse the high bar for diversity and excellence set by Governor Deval Patrick.
The JNC serves a crucial function in the recruitment and review of judicial applicants. However, their recommendations can only be as good as the applicants they receive. A great and diverse bench emerges only from a great and diverse candidate pool. The Governor has done his part by creating a remarkably diverse JNC under all metrics from geography to demographics to practice field and size. Now, if you’ve given any thought to pursuing a judgeship or know someone who would make a great judge, the next step is yours! We have laid out the process here, but it all starts with the application. To maintain the high standards set by judges in Massachusetts, we need the best candidates to continue to apply.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association