With The Loss Of Gants, Baker Has A Historic Opportunity At The High Court

With the death of Massachusetts Supreme Judicial Court Chief Justice Ralph Gants, Gov. Charlie Baker will do what none of his most recent predecessors have done.

He'll be the first governor in recent memory to appoint all seven state supreme court justices.

Baker has already appointed five justices, all of whom were elevated to the high court in the last four years. And he was scheduled to replace Justice Barbara Lenk, who will reach the mandatory retirement age and leave the bench in December. With a nomination for a new justice after the loss of Gants, all of the court's members will have been named by Baker.

The first step in the process belongs to the Judicial Nominating Commission, which reviews applications, interviews candidates and forwards recommendations to the governor. Attorney Liza Lunt, a former member of the commission, worked on nominating the five of the current justices.

Gants death leaves a large void, she said.

"Finding somebody who can fit [Gants'] shoes will be impossible and the governor has a difficult job trying to find a replacement," Lunt said. "Everybody is new and that can change the whole tenor of the court."

Gants' influence on the court was evident, according to many court observers who praised his commitment to fairness and equity — especially fairness to those without resources and racial equity. Defense Attorney Jamie Sultan, who frequently argues before the SJC, said most of the current justices have strong backgrounds as prosecutors.

"As far as I know, nobody currently sitting on this court has ever represented a criminal defendant in a courtroom," Sultan said. "And that's extraordinary for a court made up of seven people. And it's just really important and in my view, that this court be balanced."

"Everybody is new and that can change the whole tenor of the court."

Liza Lunt

There are also calls to racially diversify the court. Justice Kimberly Budd is the only person of color. She and Justice Elspeth Cypher are the only women. The other three justices — Frank Gaziano, David Lowy and Scott Kafker — are white men.

Suffolk County District Attorney Rachael Rollins has urged the governor to make changes, arguing that the state courts, and those who help appoint judges are overwhelmingly white.

"We have a lot of work to do to make sure that people of color, in particular black and brown people, which are far overrepresented in the criminal legal system, have a place at the table in important decision-making positions," Rollins said.

Last month, Baker reopened the application process for high court justices because of Lenk's pending retirement. Applications were due on September 11.

"We have a lot of work to do to make sure that people of color, in particular black and brown people, which are far overrepresented in the criminal legal system, have a place at the table in important decision-making positions."

Rachael Rollins

As for what he might do about the chief justice specifically, Baker can choose a sitting justice or someone outside the court. At a press conference Tuesday, Baker said he's working on it.

"We haven't thought much about next steps. There is a process and obviously, " Baker said. "We need a few days to figure that out."

Attorney Lon Povitch has served on nominating commissions before and is Baker's former chief legal counsel. He said the governor likely will consider several things in making his next appointments.

"I'm sure that, as he has done in the past, he will look for lawyers or judges with the intellect, legal and life experience, temperament and work ethic to take on deciding the most important cases in the commonwealth and managing the court system," Povich said.

Any choice of the governor must be approved by the Governor's Council. Councilor Eileen Duff said she hopes Baker makes a courageous choice at this time of protests over police violence and racial injustice.

"This is a real opportunity, and it's bigger than just appointing a judge, because we are at a critical time in our national history," Duff said. "I hope he will show some leadership and think differently."

The SJC is known for historic rulings on issues such as gay marriage and criminal justice reforms. Retired federal judge and WBUR legal analyst Nancy Gertner said she hopes the governor isn't too cautious in making his nominations.

"It's a remarkable court and that's what Baker should be aiming for," Gertner said. "Baker should be aiming for excellence and not just avoiding controversial picks."

Gertner said she hopes Baker nominates someone with a legal mind like Gants, who was known for a sometimes unconventional approach to improving the justice system.

All state courthouses will be closed Friday in Gants memory.