Contrary to popular mythology, donning a black robe before entering a courtroom does not imbue that person with some sort of preternatural ability to divine what’s right and to mete out justice. Sorry if we’re busting any judicial bubbles.
Of course, the perspective, experience and ideology of the person wearing that cloak matters a lot. The intensity of the debate over whether Hillary Clinton or Donald Trump should make Supreme Court and other federal court appointments highlights this point.
The confirmation process for a federal judge is straightforward. The president nominates. Then the Senate Judiciary Committee holds a hearing (O.K., apparently not when Republicans control the Senate and Barack Obama is president but, you know, generally speaking, that’s what happens). Then the Senate votes. For state court judges the process is a bit different. The governor nominates one of the persons suggested by the Judicial Nominating Committee (approximately 20 lawyers from across the state appointed by the governor). Then the nominee appears before the Governor’s Council for an up or down vote.
The Governor’s Council, a creation of the state constitution, is comprised of eight elected councilors. The lieutenant governor presides but votes only in the case of a tie.
Morneau, the progressive candidate, acknowledges the problem of mass incarceration and supports reasonable, fair and just use of probation, parole and commutation. After all, over 90 percent of persons who are locked up are going to be returned to the community some day.
In contrast, consider Hurley’s pronouncement at her candidacy kickoff in October 2015. Her announcement was stunning. She said, “It’d be a really cold day in hell before [I’d] vote in favor of granting a pardon or commutation of sentence.” Really, she has no information whatsoever, but she’s already decided the case.
We know this: The criminal justice system makes mistakes. Sometimes, the punishment does not fit the crime or the person who committed it. President Obama this week demonstrated how commutations can be used to right such wrongs.
Unfortunately, the Governor’s Council, which has the final say over whether a prisoner’s sentence is commuted, rarely considers commutations because first the Parole Board has to recommend and then the governor has to agree. Only after that does the Governor’s Council vote. That said, the last thing this process needs is a councilor from our district with an outdated, lock-’em-up-and-throw-away-the-key mentality.
Back to voting on proposed judges. One of Hurley’s biggest supporters is Springfield Mayor Dominic Sarno, known in the criminal justice system for complaining that when the police make arrests, judges too often “sing ‘Kumbaya’” to “gang-bangers” (his words) before sending them back out on to the street.
While Hurley has refrained from embracing Sarno’s racially coded rhetoric, she has signaled her preference for judicial candidates “willing to set appropriate bails for individuals who pose a threat to the community.” Her position ignores the fact and the law that dangerous people who are arrested can be detained pending trial after a dangerousness hearing. She also ignores the constitutional guarantee to a reasonable bail. Bail is intended not as a subterfuge to imprison people before trial but rather to help assure the defendant’s presence at trial.
For the past 18 years as an attorney, Morneau has advocated for workers and unions, fought against wage theft and discrimination and for better benefits and working conditions. In his position as bar president he has called for a diverse judiciary and supported treatment over incarceration for drug-dependent persons. He opposes the death penalty and mandatory minimum sentences and serves on the Board of Directors of the Hampden County Lawyers for Justice, the organization that provides representation for indigent defendants. His perspective is progressive and not politically driven.
Hurley, in contrast, has a long and entrenched political history that includes a stint as Springfield’s mayor between 1989 and 1992. Not long after that she was appointed a judge of the Chicopee District Court by Republican Gov. William Weld. She retired in 2014.
The Massachusetts Governor’s Council plays a pivotal role in confirming (or not) the persons who will wear black robes and sit on the Parole Board. As lawyers dedicated to serving our communities and as advocates for a justice system that embodies fairness and equality, we know which one of these candidates will represent our values. It’s not a close question.
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