BOSTON — Gov. Charlie Baker is set to nominate two associate justices to fill vacancies on the Supreme Judicial Court, in addition to naming a new chief justice — moves legal experts say will put the Republican's stamp on the state's highest court for decades.

Baker appointed five justices to the bench during his first four-year term as governor. The sudden death of Chief Justice Ralph Gants last month and Associate Justice Barbara Lenk's pending retirement at the end of the year give Baker two more vacancies to fill during this term.

The governor must also fill the chief justice vacancy, likely by elevating a current member of the seven-member court.

Appointing all seven members of the state's highest court, as Baker is poised to do, will be a historic accomplishment for a Massachusetts governor. Legal experts say the only other time that happened in the state's history was when John Hancock was governor in the late 1780s.

"This is a really huge deal," said Eileen Duff, a Gloucester Democrat and member of the Governor's Council, which reviews Baker's nominees. "It's a daunting task for the governor, and I don't think he's taking it lightly."

New applicants for the high court, who remain yet unknown, will first be vetted by the Judicial Nominating Commission, which operates under Baker's office. Eventually the nominees will go before the eight-member Governor’s Council, which has final say on the confirmations.

Governor's Councilor Terrence Kennedy, a Democrat and Everett lawyer, said he has no idea who will be nominated by Baker for either post, but he hopes the governor will expand the diversity of the court. Justice Kimberly Budd, a Black woman appointed by Baker in 2016, is the only person of color on the bench.

"In this day and age, with all the racial justice issues the courts are wrestling with, we should have an African-American man on the SJC," Kennedy said.

Duff also said she wants to see more diversity on the high court.

"I'm not just talking about a court that reflects the diversity of the state, but the diversity of the people who are appearing in courtrooms," she said, "and that is not typically an educated white male."

Duff said Baker should also look outside the court system, such as in academia, for potential candidates.

Both Kennedy and Duff expect Baker will move to fill the two vacancies before the end the year. They noted a sense of urgency exists.

"We’re in a very bad position right now with the judiciary," Kennedy said. "Basically the third branch of government is without a leader in a very difficult time."

During his first term, Baker appointed five associate justices to the Supreme Judicial Court: Frank Gaziano, David Lowy and Kimberly Budd were seated in 2016, and Elspeth Cypher and Scott Kafker joined the bench in 2017.

Former Gov. Deval Patrick, a Democrat, also left a lasting mark on the state's judiciary during his eight years in the governor's office, legal experts say.

Patrick appointed nearly half of the state’s sitting judges and is credited with making the courts more diverse by appointing more minorities and women. He seated five justices on the Supreme Judicial Court, including the state’s first African-American chief justice, Roderick Ireland, who retired in 2014.

Patrick also named Ireland’s replacement, Justice Gants.

Massachusetts' highest court is known nationally for its historic rulings on same-sex marriage, criminal justice reforms, racial injustice and other highly debated issues.

Unlike the U.S. Supreme Court, where justices are appointed to the bench for life, the state Constitution requires Massachusetts justices to retire at age 70.

Peter Elikann, a Boston-based criminal defense attorney, said he hopes Baker names someone with criminal or civil defense experience to diversify the judicial background of the court. Traditionally, appointees are former prosecutors with pedigrees from a U.S. attorney’s office or district attorney's office.

Elikann agreed Baker is under pressure to diversify the court as he mulls over candidates, but pointed out the governor has a track record of appointing "first-rate" judges.

"His choices aren't politically motivated and he doesn't pick ideologues," Elikann said. "He really seeks out some of the best legal minds in the commonwealth."

Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at cwade@cnhi.com

 

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