Vacancy may offer platform for Romney Appeals Court chief to retire

With the head of the Massachusetts Appeals Court poised to retire in July, many in the state's legal community predict that Governor Mitt Romney will fill the most prominent judgeship likely to become vacant in his tenure with someone whose background will showcase Romney's conservative bona fides for a possible presidential bid in 2008.

Christopher J. Armstrong, who has been chief justice of the state's second-highest court since 2000, will reach the mandatory retirement age of 70 on July 28. Many in legal circles speculate that Romney will elevate one of the 24 remaining appeals court justices to succeed the highly regarded jurist and administrator.

Three associate justices whom Romney appointed have emerged as potential front-runners, according to prominent lawyers and a former trial court judge. The three are Ariane D. Vuono, 49, a former federal and state prosecutor from Northampton; Gary S. Katzmann, 53, a former federal prosecutor from Brookline and member of Romney's Juvenile Justice Advisory Committee; and Andrew R. Grainger, 58, the former president of the nonprofit New England Legal Foundation, a pro-business legal group.

Romney could use the promotion of either Katzmann or Vuono to convey that he is tough on crime. Vuono's elevation would also counter charges that he has not appointed enough women to the bench. And it would be a nod to Western Massachusetts that could reap political benefits for Lieutenant Governor Kerry Healey, running to succeed him when his term ends in January.

''Gary Katzmann has been on the law enforcement side, which fits in with what the governor might like," said Stephen Chow, a Boston lawyer whom Romney recently removed from the Judicial Nominating Commission and who characterized his assessments as speculation.

The promotion of Grainger, meanwhile, might please Republicans concerned about issues such as the protection of individual property rights. As head of the New England Legal Foundation, Grainger filed a friend-of-the-court brief with the US Supreme Court opposing the seizing of private homes to enable commercial development.

Howard M. Kahalas, another lawyer Romney removed from the commission, said the ''scuttlebutt" is that Romney appointed Grainger with plans to elevate him. Grainger served in the late 1990s as a consultant for Bain & Co. Inc., when Romney was a Bain executive. But Grainger told the Governor's Council, which confirmed his nomination, that he never met Romney at Bain and was not a personal friend.

Grainger and Katzmann declined to comment on the speculation through the court's administrative assistant, Alexander M. McNeil. Vuono was unavailable. The chief justice earns $122,050 a year, compared with $117,467 for associate justices.

Romney spokesman Eric Fehrnstrom said his boss is currently focusing on his recent nomination of four women to the trial court. When Romney nominates Armstrong's successor, however, he will consider individuals on and off the court and ''seek out candidates who share his commitment to the rule of law and who understand the importance of applying the law as opposed to legislating from the bench," Fehrnstrom said in an e-mail message.

A promotion of Vuono or Grainger could draw fire because Romney would be passing over many seasoned associate justices. Vuono was sworn in on March 7 and Grainger on May 4. (Katzmann has been on the bench since 2004). Other associate justices have served as far back as 1978. Armstrong has been on the court since 1972, making him the state's longest-serving judge.

Rudolph Kass, a retired associate justice appointed by former governor Michael S. Dukakis, said he would pick someone well acquainted with the justices and the court. ''I'd choose someone who knows the players, and has been there," said Kass. ''This is not something we're trying to shake up and reform."

Armstrong, one of the original judges on the court, which was created in 1972 to relieve the caseload before the Supreme Judicial Court, the state's top court, said Romney has given him no indication whom he will pick. But Armstrong would be surprised if it was not someone already on the court, he said.

The speculation comes as Romney faces criticism for seizing control of the way judges are nominated and weakening the Judicial Nominating Commission, a panel intended to evaluate candidates without regard to politics.

In a series of executive actions, Romney has stripped the commission, a panel of 21 lawyers, of its long-held power to evaluate candidates' fitness for the bench, narrowing its role to a cursory review of educational and professional experience. He also removed five members.

Jonathan Saltzman can be reached at jsaltzman@globe.com.