BOSTON — Gov. Deval Patrick’s latest nominee to the Supreme Judicial Court, appellate court Justice Barbara Lenk, comes before the Governor’s Council on Wednesday.
The council has the power to confirm or deny nominees for judgeships as well as the Parole Board and other positions. In practice it’s been a reliable rubber stamp for the governor, though now the council is newly feisty and fractious with meetings that seem like WrestleMania. It’s also a council some would like to abolish.
Councilor Charles Cipollini — ‘Dr. No’
Charles Cipollini, the new councilor from Fall River, is a big, shambling man with white hair and an easy laugh. A Republican and social conservative, he says he’s here to shake things up. And so far he has a perfect record — he’s opposed every one of the governor’s nominees for judge.
“Have you voted for any of the judges that have been nominated yet?” I ask.
“No,” he says, laughing.
On a Governor’s Council that hasn’t rejected a judicial nominee since 1993, Cipollini is Dr. No in a culture of yes. And when it comes to Lenk, guess what?
“I’m going to vote ‘no’ on this nominee,” he says.
Cipollini has his reasons. He’s opposed to gay marriage and he’s convinced the openly gay judge, who is married to another woman under Massachusetts law, has her mind made up. He’s convinced she has a position because of her private life, due to the fact that she’s married.
“Well, why would she rule,” he says. “I like spaghetti. And if they change the definition of the spaghetti to give me a bunch of worms on the plate and say, ‘That’s spaghetti,’ I’m not going to accept it.”
Cipollini can sometimes seem like the uncle who’s not all there. Sometimes he can be outrageous — as when he wonders whether the governor, after having nominated the first black chief justice, the first Asian-American justice and now the first openly gay justice, will now nominate the first illegal alien as well.
But one thing you can’t call Cipollini is “a rubber stamper.” And rubber stamp is just what the Governor’s Council has been — until now. It’s been 18 years since it last rejected someone, a record that even rubber stamps would envy.
The improbable Cipollini, a surprise winner in last November’s elections, has come here to do the people’s business. He has a battle on his hands, “because there are four dead rubber stampers on this council.”
He edits his quick tongue.
“There are four rubber stampers on this council,” he says, laughing.
“The most important function of the Governor’s Council is checks and balances. If you did not have a Governor’s Council, there’d be no checks and balances,” says veteran Councilor Marilyn Petitto Devaney, an independent voice and, like Cipollini, a non-lawyer. Devaney, like Cipollini, believes fervently that the council stands as a check against the executive branch. In that process, a closed-door meeting of lawyers chooses a menu of candidates to serve up to the governor. It’s called the Judicial Nominating Commission.
“They’re not elected, they’re not accountable,” she says. “It really is scary.”
The Governor’s Council’s Rocky Past
Yet the history of the Governor’s Council has hardly been a testimonial to its independent oversight.
Gov. John Volpe called it “a hock shop” for selling pardons and jobs. That was in the 1960s, when four councilors were indicted and convicted in one fell swoop. And the notorious rascal Sonny McDonough held sway over the council for years with the philosophy that “Honesty is no substitute for experience.” Having once served on the council, Gov. Endicott “Chub” Peabody tried to kill it. And Gov. Michael Dukakis vowed to abolish it in his first term. He didn’t keep his promise.
Suddenly, as Cipollini and another new member have joined up with Devaney and another veteran councilor as non-rubber stampers, the votes on the governor’s choices have gotten close. The votes have sometimes tied, requiring the governor to attend, so his lieutenant governor, who normally presides over the meetings, can vote to break the tie when the councilors split 4-4.
The meetings have gotten contentious, sometimes just crazy.
Never before have so many councilors seemed to demonstrate so much independence. Or unseemliness. And yet the council has also managed to motivate both the Boston Globe and the Boston Herald to agree on an editorial position — to abolish the Governor’s Council.
At last Wednesday’s meeting, a cat-fight broke out after Devaney accused Councilor Thomas Merrigan, a Patrick ally and reliably safe vote, of trying to rush through one of Patrick’s nominees.
“Merrigan has called me crazy, bizarre, suspect,” Devaney says.
As nasty as it got, only three councilors were in attendance to witness it — non-attendance at hearings being a common trait among councilors who generally vote to confirm.
“And the lieutenant governor will tell me this is the 11th hour,” Devaney says. “Well we are the 11th hour.”
Frustration certainly explains in part why Gov. Paul Cellucci once called the Governor’s Council “a bunch of idiots.”
For the time being and even in losing, these non-rubber stampers, and especially Charles Cipollini, are driving the winners crazy.