Marshall apologizes for 'red states' quip

The chief justice of the state Supreme Judicial Court yesterday apologized for a joke she made at the beginning of her commencement speech at Brandeis University in May, when she quipped to spectators gathered beneath blue and white balloons, ''No red states here."

The remark by Chief Justice Margaret H. Marshall, who wrote the court's landmark 2003 decision allowing same-sex marriage, triggered a confidential complaint to the Commission on Judicial Conduct. The commission released an extraordinary statement yesterday from the state's top jurist, who said she regretted making what might have been construed as a political statement.

''The comment was an unconsidered, spontaneous attempt to connect with the exuberant, celebratory feeling in the audience, reflecting the balloons I had seen," Marshall said. ''The reference to 'red states' was not part of my written, prepared speech. I regret the comment, and I apologize for it. I did not intend to say anything of a political nature."

The commission said Marshall's statement resolved the complaint filed after the graduation. The panel did not identify who filed the complaint or give any details. Commission proceedings are confidential unless they result in formal charges.

Marshall's predecessor as chief justice, Herbert P. Wilkins, who served on the court from 1972 to 1999, said it was the first complaint about an SJC justice he could recall being made public.

The state Code of Judicial Conduct specifies that a ''judge shall refrain from political activity." It also warns judges not to say anything outside the courtroom that might cast doubt on their impartiality, including ''jokes or other remarks made in a public setting."

Marshall, who has drawn fire from conservatives across the country since the same-sex marriage decision, used her commencement speech to decry attacks on judicial independence. She also said the suggestion that court decisions should conform to public opinion are threatening public trust in the judicial system, a cornerstone of democracy.

But it was Marshall's throwaway line before she began delivering her written speech that led to yesterday's apology. She made the joke as a crowd of 7,000 gathered under hundreds of balloons of blue and white -- Brandeis's colors -- resting in nets under the rafters of the ceiling of the Gosman Sports Center.

Dennis Nealon, a Brandeis spokesman who heard Marshall's speech, said he only learned about the complaint Thursday. Everyone he spoke to the day of the speech, he said, considered Marshall's remark a humorous aside.

''I heard nothing about anybody being offended," he said.

Through a court spokeswoman, Marshall yesterday declined to discuss the remark or her apology. In her statement, however, she said, ''The comment did not reflect what I had intended. I regretted the comment as soon as I said it, and that has never waned."

Her lawyer, A. Hugh Scott, said the joke did not ''rise to or even approach any violation of the judicial canons." After the complaint was filed, Scott said, he and the commission had a series of discussions leading to an agreement for Marshall to issue an apology. Scott declined to give further details.

''The important thing here is that the commission did not bring any charges against Chief Justice Marshall, formal or informal," he said.

The commission investigated an average of 189 complaints a year about judges from 1999 to 2004, but few of them become public. Sanctions for misconduct range from reprimands to forced retirement. But most complaints result in no charges. The public typically only hears about discipline if charges have led to public hearings or judges have agreed to punishment.

This week, the commission suspended a Plymouth County juvenile court judge for a year without pay for sexually harassing two female court workers. The commission also fined him $50,000 and barred him from ever sitting in any Plymouth County court.

Several politicians and members of Boston's legal community defended Marshall, a former president of the Boston Bar Association.

Governor Mitt Romney, a Republican who often attacks the SJC for what he believes is its liberal bent, said joke-telling shouldn't be taken so seriously. Last month, Romney was criticized after a speaker introduced him at a Washington speech with a joke about the KKK and US Senators John F. Kerry and Edward M. Kennedy; Romney drew flak for initially saying nothing about the joke, though he later said it was in poor taste.

''As you might be able to surmise from my own experience, I believe that when it comes to political joke-telling people should be very forgiving, and they should lighten up generally," Romney said yesterday at the annual conference of the Republican Governors Association in Carlsbad, Calif.

Former governor William Weld, a Republican who appointed Marshall to the high court and was given to humor himself, said yesterday that the complaint with the commission was ''borderline ridiculous." ''We need more humor in public life, not less humor," said Weld, who is running for governor of New York.

Joan A. Lukey, a past president of the Boston Bar Association who recently served as special counsel to the commission when it investigated the Plymouth juvenile court judge, Robert F. Murray, found it hard to believe that anyone could have been offended by Marshall's quip. The joke, she said, hardly amounted to political activity or a sign of bias. ''If that's a violation, it seems to me that judges have to go through life walking on a pretty narrow balance beam," said Lukey, a Democrat.

But that is the case, said Wilkins, who credited Marshall for apologizing. ''This is certainly something she should not have said, and she admits it," he said, though the comment was ''right at the margin of being trivial."

Brian Camenker, director of Article 8 Alliance, a Waltham group founded to remove Marshall and the other three justices who legalized same-sex marriage, said her remark was ''pretty undignified." But it was insignificant compared to her actions on the court, he said. ''I don't think I would have complained about a remark like that in light of everything else," he said.

Scott Helman of the Globe staff contributed to this report. Jonathan Saltzman can be reached at jsaltzman@globe.com