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Romney jurist picks not tilted to GOP
Independents, Democrats get call

By Raphael Lewis, Globe Staff | July 25, 2005

Governor Mitt Romney, who touts his conservative credentials to out-of-state Republicans, has passed over GOP lawyers for three-quarters of the 36 judicial vacancies he has faced, instead tapping registered Democrats or independents — including two gay lawyers who have supported expanded same-sex rights, a Globe review of the nominations has found.

Of the 36 people Romney named to be judges or clerk magistrates, 23 are either registered Democrats or unenrolled voters who have made multiple contributions to Democratic politicians or who voted in Democratic primaries, state and local records show. In all, he has nominated nine registered Republicans, 13 unenrolled voters, and 14 registered Democrats.

With increased attention on judicial nominees after President Bush’s nomination of John G. Roberts Jr. to the US Supreme Court, Romney said Friday that he has not paid a moment’s notice to his nominees’ political leanings or sexual orientation — or to the impact his choices might have on a future presidential run. He said he has focused on two factors: their legal experience and whether the nominees would be tough on crime. He said most of the nominees have prosecutorial experience.

‘’People on both sides of the aisle want to put the bad guys away,” Romney said.
Photo Gallery Romney’s judicial picks

Romney, who is considering a run for the Republican nomination for president in 2008, has cast himself to GOP audiences as a lonely Republican voice in an overwhelmingly Democratic state. But his judicial appointments led one out-of-state activist to suggest the choices might hurt Romney among Republican voters. Observers in the Bay State legal community, meanwhile, said they see a contradiction between Romney’s judicial choices and his conservative rhetoric, including his stated opposition to same-sex marriage.

‘’I’ve long since given up trying to figure out what makes Mitt Romney tick,” said Joyce Kauffman, former cochairwoman of the Massachusetts Lesbian and Gay Bar Association.

The governor said that, so far, he has had few chances to appoint judges to the highest state courts, where his criteria would change to include ‘’strict construction, judicial philosophy.”

‘’With regards to those at the district court and clerk magistrate level, their political views aren’t really going to come into play unless their views indicate they will be soft on crime, because in that case, apply elsewhere,” Romney said.

The Globe’s review found that several of his choices for the bench in Massachusetts have strong ties to the state’s dominant Democratic Party. He tapped a former Democratic Suffolk County sheriff, the sister of Boston’s City Council president, a top official under Democratic Secretary of State William F. Galvin who once ran for the House seat of Republican leader Bradley H. Jones Jr., and a former intern for Democratic US Representative Joseph P. Kennedy who switched his party affiliation to the GOP two weeks before his nomination.Continued...Continued...

Romney, despite his opposition to same-sex marriage, in May selected for a district court judgeship Stephen S. Abany, a former board member of the Massachusetts Lesbian and Gay Bar Association who organized the group’s opposition to a 1999 bill to outlaw same-sex marriage. Just two days before the nomination, Romney was lamenting the liberal tilt of the state’s bench, telling Fox News that ‘’our courts have a record here in Massachusetts, don’t they, of being a little blue and being Kerry-like.”

Another Romney choice for the bench is Marianne C. Hinkle, a registered Democrat who worked as an aide to Governor Michael S. Dukakis in the late 1970s and prosecuted John C. Salvi III in the 1994 Brookline abortion clinic shootings. Hinkle, in her application for the bench, describes herself as a longtime active member of Dignity/USA, a group that advocates for expanded gay rights in the Catholic Church and society generally.

Romney won praise in the legal community when he replaced regional judicial nominating committees that were viewed as politically tainted with a centralized Judicial Nominating Commission. The commission considers applicants using a ‘’blind” first phase of the selection process that removes names from applications in an attempt to ensure the candidates will be judged on their merits. In addition, all of Romney’s nominees have been submitted to a Joint Bar Committee on Judicial Nominations, which rates candidates as qualified, well-qualified, or unqualified — and each has been found to be either qualified or well-qualified.

After Romney nominates the candidate, the pick must be approved by the Governor’s Council, where Democrats hold eight of nine seats. Some observers said the long list of Democrats among Romney’s court picks suggests that the governor has at least one eye toward the political landscape of the state, where registered Democrats outnumber Republicans nearly 4 to 1.

‘’He’s tried to have a process devoid of politics, [but] he also has to get his nominees approved by the Governor’s Council, and that is not a bipartisan body,” said Jones, of Reading. ‘’The biggest problem in trying to reform the system to make it devoid of politics is that not everyone else buys into that model.”

Romney, asked if he has engaged in any horse-trading with Democratic politicians, said: ‘’So far I have not ever given any weight whatsoever to whether I think someone can make it through the Governor’s Council. I send them individuals who I feel are highly qualified and have the right judicial temperament related to crime and punishment.”

Romney has faced criticism from Governor’s Councilors and some bar associations for failing to nominate more women, minorities, and defense attorneys to the bench. Seeking to counter such attacks, Romney’s appointee to the chairmanship of the Judicial Nominating Commission, Boston lawyer Christopher D. Moore, has reached out to minority and women’s bar associations to encourage members to apply. He’s done the same with the state lesbian and gay bar association, which also has a seat on Romney’s joint bar committee.

‘’This is one of my real goals, to continue this track record of reaching out by making full use of these organizations,” said Moore. ‘’Since becoming the chairman, it’s almost a universally held view that these organizations are the best forums for demystifying the process.”

Whitney J. Brown, a registered Democrat with ‘’no connections” whom Romney nominated earlier this month for a clerk magistrate position in Gardner District Court, said she was shocked to even get an interview for the position, let alone the nomination.

‘’Everyone said to me, ‘Good luck, you’re not going to get anywhere,’ “ Brown said.

Still, there is evidence to suggest that Romney is making sure his fellow Republicans and conservatives get a piece of the action.

For one thing, Romney’s choice to chair the Judicial Nomination Commission, Moore, is a Republican and member of the Federalist Society, a conservative legal group that fights ‘’judicial activism” and promotes the legal system as the preeminent venue for protecting ‘’traditional values.” Romney also named to the commission Greer Tan Swiston, a software engineer and failed Republican candidate for state representative in 2004 with no legal training.

Peter Vickery, one of the Democrats on the Governor’s Council, says he believes Romney and Moore would seek far more conservative jurists if a vacancy were to pop up on the Supreme Judicial Court, which delivered the gay marriage decision that Romney has routinely blasted.

Some of Romney’s nominees do have stellar Republican or conservative bona fides. For example, Romney’s pick for Peabody clerk magistrate, Kevin L. Finnegan, is a former two-term Republican state representative. Another choice was Bruce R. Henry, the son-in-law of former SJC Justice Joseph Nolan — whom Romney wanted to represent his administration in seeking a stay of the court’s gay marriage ruling.

David L. Yas, editor of Massachusetts Lawyers Weekly, a trade publication, said the perception among most Bay State lawyers is that Romney’s administration, when it comes to screening out politics from the process, is not much different from past governors.

‘’People feel the process has made some improvements, but in the legal community, there is still a sentiment that politics still plays a role,” Yas said.

Some in the bar say Romney has been slow to solve the dispute over pay raises for public defenders, and some lawyers resent his cries of judicial activism in the wake of the SJC’s same-sex marriage ruling of November 2003.

‘’Those in the legal community take the independence of the judiciary very seriously, and when he derisively calls them unaccountable and activist, that gets the legal community steamed,” Yas said. ‘’He hasn’t exactly expressed great confidence or pride in our legal system.”

Rick Beltram, chairman of the Spartanburg County, S.C., Republican Party that hosted a Romney fund-raiser in February, said South Carolina’s Republican presidential primary voters may think twice about supporting a Massachusetts governor whose judicial picks had been ‘’actively lobbying for gay marriage.”

‘’That could be a problem,” Beltram said.

At the same time, Beltram said he suspects Romney’s judicial choices reflect ‘’smart politics,” given that Republicans constitute just 13 percent of Massachusetts registered voters.