Patrick’s choices may change little on SJC

By Noah Bierman
Globe Staff / February 7, 2011

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With yet another vacancy opening this spring, Deval Patrick has an opportunity to put a bigger stamp on the Supreme Judicial Court than any governor since Francis W. Sargent in the 1970s.

But Patrick, over the long run, is unlikely to transform the ideological imprint of a bench that, even when dominated by Republican appointees, became the first high court in the nation to legalize gay marriage.

Unlike the US Supreme Court, known for its distinct ideological factions, the seven members of Massachusetts’ highest court often vote unanimously. And even such wrenching split decisions as the 4-3 same-sex marriage ruling in 2003 are often hard to break down by political leanings.

“There are no blocs of voting,’’ Margaret H. Marshall, the court’s former chief justice, said in an interview.

The SJC is viewed by many attorneys as liberal-leaning, not only because of gay marriage, but also because of its record of expanding the rights of criminal defendants. Still, attorneys and former SJC justices say it will be difficult to differentiate the “Patrick court’’ from the one he inherited.

“He comes from a background, cer tainly, of liberal Democratic thought in the state,’’ said Michael E. Mone, a former president of the state bar association who has served on judicial nominating committees at the state and federal levels. “But liberal Democratic thought in the state is not too far off from Republican thought in the state.’’

Patrick has had a rare chance to fill vacancies on the SJC. The two previous governors, Jane Swift and Mitt Romney, did not name a single jurist to the court, as its membership remained consistent from 2001 to 2007.

The court began a period of turnover with the 2007 death of Martha B. Sosman, less than three months into Patrick’s first term. Since then, the governor has nominated three associate justices, including Fernande R.V. Duffly, who was sworn in last week. Last Monday, a fourth justice, Judith A. Cowin,, who was appointed by Governor Paul Cellucci, announced she plans to retire in April.

Patrick last year also elevated an associate justice of the court, Roderick L. Ireland, an appointee of William F. Weld, to chief justice, after Marshall announced her retirement. But Ireland will reach the court’s mandatory retirement age of 70 in December 2014, giving Patrick a shot at a fifth nominee at the end of his second term as governor.

Patrick has said he favors judges with “touch’’ — meaning, he said, “the law has to make sense in the lives of real people.’’ The description echoes language used by President Obama that has drawn scorn from conservatives who believe judges should hew to a more narrow interpretation of the Constitution. But those fights have largely not resonated when judges are selected on Beacon Hill.

Regardless of the political leanings of the governors who appoint them, most Massachusetts judicial picks come from the same general talent pool. Governors appoint professional committees to vet potential judges, but then have complete discretion over whom they select.

Patrick’s first two appointees to the SJC — Margot Botsford and Ralph D. Gants — have not been easy to pin down, according to attorneys and retired justices.

“Justices Botsford and Gants are not in lockstep,’’ Marshall said. “And they are both Governor Patrick’s appointees.’’

In November, Botsford wrote an opinion for the majority in a 4-1 decision ordering a new trial for Jerome McNulty, a Lynn man convicted of first-degree murder in the stabbing death of his girlfriend.

Botsford wrote that police violated McNulty’s rights by not passing along a message from his lawyer shortly after his arrest, while he was being interrogated. Botsford was joined by Cowin, a former prosecutor who has sided with police in several dissenting opinions on previous high-profile rulings. And Gants, a former federal prosecutor, wrote a vigorous dissent in the McNulty case, arguing that police had acted appropriately.

Retired chief justice Herbert P. Wilkins, who served 27 years on the court, said the current mix of justices has largely continued to defend the rights of criminal defendants, which were expanded in the courts in the 1960s. That stands in contrast to the US Supreme Court, which has sided more frequently with law enforcement, Wilkins said. (The SJC is also charged with interpreting the more expansive state Declaration of Rights.)

“This is probably a collection of slightly left-of-center judges,’’ said Wilkins, one of six justices appointed by Sargent; Wilkins was elevated to chief justice by Weld.

The Cellucci appointees still on the court have been slightly more conservative than the others, Wilkins said, but even that line has been difficult to draw.

“Although I don’t agree with everything everyone has done — no one ever does — they have basically come to the right answers,’’ Wilkins said.

Those answers can be difficult to predict based purely on the politics of the appointing governors.

In the gay marriage decision, for example, three of the four SJC justices who formed the majority were appointed by Republican governors, including its author, Marshall, who was appointed by Weld and elevated to chief justice by Cellucci. The fourth was appointed by Michael Dukakis, a Democrat. The three dissenting voices were Cellucci appointees.

Patrick, a Harvard Law graduate, has a deep interest in the law. He gained his first major political experience in the legal sphere, leading the US Justice Department’s civil rights division under President Clinton. He has also served as corporate counsel to Coca-Cola and Texaco, and on the NAACP Legal Defense Fund, where his work included the high-profile defense of a policeman’s killer on death row.

Patrick declined last week to characterize how his appointees might shape the court ideologically, listing rigor, legal scholarship, and integrity among essential qualifications he seeks in a justice. But he also said he looks for something else.

“Demeanor, I think, is also important,’’ he said. “And understanding that for most citizens who come before our courts, that may be the scariest, most disruptive day in their lives. And their sense of justice depends in part on whether the law is rightly applied to the facts, but also on how they’re treated.’’

Noah Bierman can be reached at