The Judicial Nominating Commission Application and Selection Process

Arguably, E.O. 470 (06-1) was the most comprehensive order issued to date having been heralded by Governor Mitt Romney as the first in the nation “blind” judicial merit selection process. Under the ambitious goal of removing politics from the judicial selection process, E.O. 470 (06-1) and its successor, E.O. 477 (07-1) establishes a Judicial Nominating Commission coupled with a code of conduct for both commission members and nominees to judicial office.[1]

 

The twenty one member commission is designed to “identify and invite application by persons qualified for judicial office and advise the governor” with respect to appointments of judges and clerk-magistrates to every court except the Supreme Judicial Court. There are a host of prohibitions found in the E.O. that are designed to insulate commission members from political influence. Specifically, commissioners are excluded from being registered lobbyists or legislators or from having any immediate family members serving as legislators.[2] Further, commissioners are prohibited from participating in political fundraising and agree not to accept a position on the bench for at least a one year period following completion of their service.

 

The E.O. sets forth a series of qualifications for those seeking appointment to the bench. All applicants must be members in good standing of the Massachusetts bar having graduated from a law school accredited by the Commonwealth or American Bar Association.  Individuals seeking appointment to the bench must have legal experience and training of a minimum of ten years for the Trial Court and thirteen years for the Appeals Court. Clerk-magistrate applicants must have graduated from an accredited undergraduate college or have a minimum of fifteen years experience working in the court system. Further, clerk-magistrate applicants who are attorneys must possess a minimum of three years experience and non-attorney applicants must have a minimum of five years of “relevant experience”.

 

In addition to commissioners, applicants are also bound by a code of conduct. Aspirants are expressly prohibited from conducting “campaigns” for judicial office. In particular, communications by, or on behalf of particular candidates to commissioners are strictly prohibited. Judicial aspirants are prohibited from making political contributions to executive branch office holders at any time while their applications are pending with the commission. Further, candidates who have been nominated by the Governor are prohibited from participating in any local, state or federal political fundraising. Nominees are forbidden to appear, while they await final appointment, as counsel in the court or its division to which they have been nominated.

 

JNC Commissioners are initially charged with a blind review of an individual’s application. All applications are bifurcated by commission staff and the anonymous non-biographical part of the application is forwarded by staff to commissioners to commence their blind review process. The commission is charged with deliberation to “discuss the relative strengths and weaknesses of applicants and may consider the particular needs of courts…in determining the relative strengths and weaknesses of applicants.” Upon review of an applicant’s background, a commissioner may move, with the support of at least four other commissioners (a minimum quorum being present), to proceed with an interview of the candidate. It is subsequent to this stage, that the identity of the applicant is revealed, and the interview process occurs. After completion of due diligence and interviews, the commission votes on whether to recommend the applicant to the Governor for nomination. An affirmative vote of at least eight commissioners (with a minimum quorum being present) is required for individuals to advance to the Governor for his consideration.[3]

 

Individuals recommended for nomination are then transmitted to the Governor’s Chief Legal Counsel for his discretionary review, interview or further due diligence including possible background investigations by the State Police Special Investigations Unit and state and federal tax collection agencies.

 

Any applicant recommended by the commission for nomination may be considered for nomination by the Governor for any judicial office for a period of eighteen months after the date of the recommendation.[4]


[1] See Governor Romney’s first executive order establishing the blind review process. E.O. 445 (03-3).

[2] This prohibition does not preclude a lobbyist or legislator from being appointed as a judge or clerk-magistrate.

[3] See Executive Order No. 477, §1.1 wherein thirteen commissioners shall constitute a quorum.

[4] This provision has been waived on occasion by the Governor.

©2014 Massachusetts Bar Association