NELF President Dan Winslow Praises Improved Judicial Diversity

In picking judges, Healey is turning to women, people of color — and mostly Democrats

By Matt Stout Globe Staff,
Updated June 3, 2024

In less than 18 months in office, Governor Maura Healey has injected more gender and racial diversity into the state’s judiciary, nominating a crop of two dozen justices composed mostly of women and many people of color.

Her picks stand out in another notable, though less-remarked upon way: They are almost all Democrats.

More than four in five of the nominees Healey has offered for the state bench are registered Democrats, far outpacing the share of the party’s voters statewide even in liberal Massachusetts, a Globe analysis found. Five of her 26 picks are registered as so-called independents, who dominate the state’s electorate. Healey has to date not nominated a registered Republican.

The heavy concentration of judicial picks from her own party may be a reflection of Healey’s efforts — explicit or not — to diversify Massachusetts’ mostly white, male judiciary, legal observers say. Attorneys also suggested it’s not surprising, given the legal pool from which Healey and other governors have plucked nominees tends to lean left. Charlie Baker, Healey’s Republican predecessor, tapped several Democrats during his final months in office, though most of his appointments in that time frame were independents, a Globe review found.

Healey aides said nominees are not asked about their party enrollment during the selection process, nor is it considered. As in past administrations, a judicial nominating commission Healey created first screens candidates on a blind basis, initially viewing only their qualifications. Healey’s 26-person judicial vetting commission, like the candidates it has put forward, comprises mostly women and Democrats.

“Political affiliation has no role in any part of the process,” Healey, a former two-term attorney general and civil rights attorney, told reporters. “It really is about your résumé, your experience, your background, your qualifications.”

To be sure, Healey, who is only in her second year in office, is still building her slate of judicial picks. Her administration has been soliciting applications for at least 13 current vacancies. Fifteen judges this year will turn or have turned 70, the state’s mandatory retirement age. Early retirements and other departures can be common, offering even more openings, and some courts are already starving for reinforcements.

Beyond winning approval from the Governor’s Council, which under state law must approve all judicial nominees and currently features seven Democrats, governors have wide constitutional authority in selecting judges.

Overall, Healey’s picks promise to usher in fresh diversity on several fronts. She has nominated 18 women so far, accounting for 69 percent of her selections — a significant share considering fewer than half of the state’s judges serving during the last fiscal year were women, according to state data. The group includes her two appointments to the Supreme Judicial Court, Elizabeth “Bessie” Dewar, a Democrat, and Gabrielle Wolohojian, an independent.

Nearly 40 percent of the governor’s picks are also people of color, who, too, remain woefully underrepresented in Massachusetts’ legal circles. Just 4 percent of the tens of thousands of attorneys who responded to a 2021 “lawyer census” were Black or Latino. Another 4 percent were Asian. The judiciary doesn’t fare much better: Last year, only 13 percent of judges were people of color. Among the state’s Probate and Family court judges, fewer than 6 percent were.

“Governor Healey is creating a legacy that speaks to her values and her priorities,” said Dan Winslow, a former Republican state lawmaker and judge who now serves as president of New England Legal Foundation. He praised Healey’s selections to date — “I would give the governor an ‘A’” he said — and said the cohort will help a state bench that has been historically “under-diverse.” 

“I can’t really fault her for not appointing more Republicans,” he added. “The Republican lawyers I know are too busy making money.”

A judge’s political leanings often loom large at the Supreme Court and federal appellate level. But it’s rarely a focus in the selection of state judges, particularly at the district, probate, and superior court levels where the majority of the state’s 425 judges operate.

One Democrat on the Governor’s Council said its members don’t ask about a candidate’s political party, though candidates are asked to disclose political donations. (Seven of Healey’s nominees previously donated to her, though mostly in small amounts, the Globe review found.)

But judicial philosophy — and with it, a person’s ideology and other lived experience — can be a major consideration in the upper reaches of the state bench, particularly at the Supreme Judicial Court, the state’s highest appellate court where major, precedent-setting decisions are made.

“I don’t want to be naïve about this, but I would imagine there would be consideration of the leaning of someone you’re going to put on the [appellate] bench,” said Martin W. Healy, chief legal counsel to the Massachusetts Bar Association.

Those active in the bar, including setting policy recommendations, “tend to lean center to left,” he said. But Healy said the association has not done an official survey of attorneys’ political leanings, and the judiciary itself has long had a reputation of being moderate, molded by decades of appointments by mostly Republican governors.

“It’s been my experience that political affiliation matters less” among state judges, said Lawrence Friedman, a New England Law professor.

Party affiliation, on the left and right, has been shrinking in Massachusetts for years. Democrats now make up just 27 percent of the state’s voting population, even as the party dominates elected office at the statewide, federal, and legislative levels. That fact has fueled the assumption that most voters who are not enrolled in any party here are in reality “closet partisans,” primarily, or even exclusively, voting for candidates of one party despite not joining it.

That 80 percent of Healey’s selections are Democrats may be a byproduct of her approach, rather than a driving force of it, observers and Democratic officials say.

Women and people of color have tended to favor Democrats in Massachusetts: 56 percent of those who were Democrats or leaned Democratic were women, while 8 and 9 percent were Black and Latinos, respectively — outpacing their shares among Republican or Republican-leaning voters, according to Pew Center research.

“You’re seeing women, you’re seeing people of color applying [for judgeships] who are feeling they might have a chance right now,” said Eileen Duff, a Democrat who sits on the Governor’s Council, which has approved 21 of Healey’s nominees and has yet to act on five. “We had a governor [in Baker], through no fault of his own, who was a straight white male with super rich friends and a very powerful PAC. If you’re a gay or a Black or an Asian person, you are not going to think you’re going to have a shot in hell with a guy like that. I wouldn’t.”

That so many nominees now are Democrats, she said, is “very interesting byproduct. But I don’t think it’s a conscious decision.”

Baker left office last year having appointed nearly 60 percent of the state’s judges, including the entire seven-member Supreme Judicial Court, a first for a modern Massachusetts governor. That included naming three justices of color, making it the most diverse high court in its 330-year history; overall, 47 percent of his appointments were women and 18 percent were people of color.

In his final six months alone, he appointed two dozen judges, 10 of whom were Democrats, a Globe review found. But his picks in that time frame reflected a greater political variation than Healey’s: A dozen were not enrolled in any party and two were Republicans, both of whom hailed from Shrewsbury, the hometown of Baker’s lieutenant governor, Karyn Polito.

Attorneys during and after have pushed the state to create a more diverse bench. The Boston Bar Association in a statement last spring noted that there was an “urgent need” for more racial diversity, citing one court report that found that some court personnel — judges included — assume an attorney of color is only in court because “they are either criminal defendants or translators.”

Healey’s nominees so far “could seen as a deliberate flipping of the historical percentages, especially for the judges of color,” said Elaine Epstein, an attorney at Todd & Weld who served on Baker’s judicial nominating committee.

“That is a statement this administration is making,” Epstein said. “It’s also important to keep in mind that the coming year will tell us a lot more.”

Article link:





Support Causes Like This