Romney curtails panel advising on new judges

With an abundance of judicial vacancies likely this year, Governor Mitt Romney has seized control of the way judges are nominated in Massachusetts, weakening a 35-year-old panel intended to evaluate candidates without regard to politics.

In a series of executive actions, Romney has stripped the Judicial Nominating Commission, a panel of 21 lawyers, of its long-held power to evaluate candidates' fitness for the bench, restricting their role to a cursory review of educational and professional experience. The changes strengthen Romney's ability to put his own stamp on the state's judiciary, as he prepares a possible run for president in 2008.

Romney's actions have stunned lawyers and judges in Massachusetts because the governor made a point of elevating the role of the Judicial Nominating Commission when he came to office in 2003, invoking John Adams as he pledged a ''squeaky clean process that has no room for politics and favors."

''It guts the JNC," said Patrick J. King, a retired Superior Court judge who cochairs a panel on judicial issues for the Boston Bar Association. ''You don't need a JNC at all if all they're going to do is check to make sure they're members of the bar and have been practicing law for 10 years."

Since its creation by Republican Governor Francis W. Sargent, the Judicial Nominating Commission interviewed clerks, lawyers, clients, and judges to assess a candidate's temperament, intellect, collegiality, and work ethic. Sargent was seeking to minimize political influence in the selection of judges by turning to a broad panel of lawyers to screen candidates, and the process remained intact for the five governors that succeeded Sargent. But in a letter to the commission in February, Romney said, ''I reserve to myself the responsibility to evaluate judicial temperament and philosophy."

''For the bar in Massachusetts, and for the judiciary, it's very disconcerting to see all the improvements in the system over the last 30 years going down the tubes because of his political aspirations," King said.

Romney has named 39 people to the state bench since taking office three years ago. Under the new system he has put in place, he will be forwarded a larger pool of candidates to pick from. Romney has said he admires judges ''who are restrained in their approach," such as US Supreme Court Justices Samuel A. Alito Jr. and John G. Roberts Jr.

There are now 22 vacancies on the 400-member judiciary. Potentially, at least a dozen more vacancies could occur if the Legislature passes a 15 percent pay raise, because the boost could encourage older judges to retire with higher pensions.

Legal observers say the shift could provide Romney his best opportunity yet to burnish his conservative credentials by naming a crop of right-leaning lawyers to the bench. Outside Massachusetts, Romney has attempted to distance himself from ''activist judges" in his state who issued the decision legalizing gay marriage.

''He's trying to get candidates who are conservative and probusiness and who have a prosecutorial background, tough on crime, and to use the words that have been flying around for a few years, he doesn't want any of those activist judges on the bench," said Kathleen M. O'Donnell, past president of the Massachusetts Bar Association.

Eric Fehrnstrom, a Romney spokesman, said in an e-mail response to the Globe that the governor was frustrated that he was not being forwarded more candidates for consideration. Fehrnstrom said that the commission had rejected 77 percent of applicants since January 2005 and that only one minority candidate had been forwarded for Romney's approval. Romney changed the rules ''to remind them that their focus is on weeding out unqualified candidates," Fehrnstrom said.

''The governor has always reserved to himself the finer issues of philosophy and temperament," Fehrnstrom said. ''The reason for that is that we are very careful not to appoint judges who will hand down liberal legislation from the bench. Instead, we want strong law and order judges who will punish criminals."

After Romney won election in 2002 on a vow to rid Beacon Hill of patronage, he toughened the commission's rules, banning political contributions by nominees and instituting a ''blind review" that shielded a candidate's name during the early stages of their application. ''Massachusetts was a trailblazer for judicial integrity in John Adams's day, and it can be a trailblazer for the same integrity in our day as well," he said at the time.

The legal establishment praised the new approach. But it created some unexpected problems. Not only were fewer than 25 percent of applicants reaching the governor, some judicial seats remained vacant for months. Romney contended that too few women and minorities were reaching his desk.

In February, he took the commission by surprise. He sent a letter outlining the panel's new, limited role, issued an executive order codifying the change, and removed five members, some of whom opposed the new rules.

''The ones that were most outspoken against it were the ones who he said, 'Hey, thank you for your service,' " said Howard M. Kahalas, a Boston lawyer who was removed from the panel. ''What bothers me is, I felt personally that the JNC that Romney set up [in 2003] could have been used as a model in other states, it was that good."

Michael Levenson can be reached at mlevenson@globe.com.