In one of the closest votes in recent history, Fernande R.V. Duffly was confirmed today as the seventh member of the Supreme Judicial Court, becoming the first Asian-American to serve on a court that dates back to the Salem witch trials.
The eight-member Governor’s Council voted 4 to 3 today with one member abstaining to confirm the 61-year-old Indonesian immigrant. Duffly fills an opening created when Chief Justice Margaret Marshall stepped down and Roderick L. Ireland was promoted from justice to chief justice.
In a statement issued by the court late this afternoon, Duffly said she was “grateful’’ to the council for confirming her nomination.
“It is a privilege and honor of the highest magnitude to be given the opportunity to serve the interests of justice on the Commonwealth's highest court,’’ Duffly said in the statement.
“As an Associate Justice of the Supreme Judicial Court I will continue, as I have done throughout my judicial career, to decide each case that comes before me fairly and impartially and to safeguard the promise in our constitution that all are entitled to equal access to justice,'' she said in the statement.
She added that she will be guided during her years on the SJC by a key phrase about judges found in the Declaration of Rights, the state’s constitution. “I will continue to promote the role of judges as ‘free, impartial and independent as the lot of humanity will admit,’ '' she said in the statement.
Lieutenant Governor Timothy Murray, who presided over the hearing but did not vote, said the split on the council reflected the panel's composition.
“People have different points of view and we have three new councilors,” he said. “All of the councilors, I think, had done their homework.”
Still, Murray and others in the administration breathed a sigh of relief. Two members who voted in favor of the nomination early this afternoon had said they were undecided as recently as this morning. A defeat would have been highly embarrassing for the administration, given the usual deference the Governor’s Council gives to SJC nominees.
“Judge Duffly was the first judge in my tenure to be held to such high scrutiny,” said Marilyn M. Petitto Devaney, a Watertown Democrat who voted in favor of the nomination. “Judge Duffly has reached this goal – not politically. She earned it the old fashioned way. She worked hard.”
Duffly’s nomination initially appeared to be an easy win for Governor Deval Patrick, who has left his mark on the SJC by choosing Ireland, the first African-American to lead the state court system, and with Duffly's historic nomination.
But three councilors who rejected her candidacy grew to oppose her after learning how she dealt with father’s rights in custody cases, an arson conviction Duffly upheld and because a councilor felt she held strong politically liberal views.
Fathers’ rights issues took on particular importance with the council, as members listened intently to activist who regularly testify about custody cases and what they say are unjustified restraining orders filed against divorced fathers.
Christopher A. Iannella, a Boston Democrat who opposed Duffly, called Duffly’s nomination the most significant nomination in years on that issue.
“When it comes to divorces and children’s rights, this is the nomination,” he said. “We will never ever have another decision like this.”
Jennie L. Caissie, a Republican from Oxford who voted for confirmation, said witnesses who testified against Duffly mischaracterized some of her rulings, and zeroed in on a handful of cases from Duffly’s 11-year career as an appeals judge.
“Probate cases and custody cases are so fact-specific,” said Caissie, who said that she only made up her mind this morning. “When you read the facts in the cases, she applied the law.”
Voting against Duffly were Iannella, Thomas T. Merrigan, a Greenfield Democrat, and Charles O. Cipollini, a Fall River Republican.
Duffly’s supporters on the Council were Terrence W. Kennedy, Lynnfield Democrat, Devaney, a Watertown Democrat, Kelly A. Timilty, a Roslindale Democrat, and Caissie.
The eighth member, Mary-Ellen Manning, a Democrat from Salem, recused herself citing a conflict of interest due to a business Manning is involved with.
Duffly moved to the United States with her family from Indonesia when she was 6. Her father was a Dutch partisan who fought the Nazis, and her mother was ethnically Chinese.
Duffly, 61, was first appointed to the bench by Governor William F. Weld, a Republican, to the probate and family court in 1992 after a 14-year career in a law firm. She was promoted to the Appeals Court in 2000 by Governor Paul Cellucci, also a Republican.
Duffly and her husband, Paul, a clinical psychologist, have three grown children and a one granddaughter. They live in Cambridge.
The Massachusetts Bar Association issued a statement applauding the confirmation.
“Her detailed experience as a probate and family court judge makes her well equipped to grapple with the complex issues facing many families today, including custody and support issues revolving around the changing nature of family structures,” said MBA President Denise Squillante.
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