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Governor picks fewer minorities for bench

Patrick admits his efforts are lacking

By Matt Viser
Globe Staff / December 5, 2008
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Governor Deval Patrick has picked two minority judges to fill 29 judicial vacancies since assuming office nearly two years ago, accumulating the worst record among recent Massachusetts governors.

In an interview this week, the governor described his lack of minority appointments as "not good enough." There was widespread expectation that, as the state's first black governor, he would increase diversity on the bench.

The rate of minority nominations is lower than his three Republican predecessors at the midpoint of their terms and is eroding the number of minority judges in Massachusetts, which has fallen to 10.2 percent, down from 10.9 percent before Patrick made his first nomination.

While nominating 11 women, the governor has elevated one black man and one Hispanic woman.

The record contradicts statements Patrick has made about fostering diversity in the judiciary; it also does not match the stronger record of racial diversity he set by appointing minority group members to his staff and to boards and commissions.

While defending the quality of his nominees, the governor said that diversity among judges is important to him and that he will continue to recruit more applicants of color.

"Who would be satisfied?" Patrick said in an interview in his office. "If you believe, as I do, that there is talent in every community in the Commonwealth, who would be satisfied with two appointments of color out of 29? I'm not satisfied, and the rest of the team knows I'm not satisfied."

"I've been at this two years," he added. "At the end of eight or 12 years, judge the record. All right?"

Patrick's record of appointing a preponderance of white men and women to the judiciary was emphasized this week when he nominated Superior Court Judge Ralph Gants to the Supreme Judicial Court, the second white nominee the governor has made to the state's seven-member high court.

While the governor said he intends to accumulate a better record of minority appointments, the small number nominated thus far has disappointed some who had hoped for more. Patrick is the nation's second black governor and was the top civil rights official in the country as assistant attorney general during the Clinton administration.

"A number of judges feel his appointments haven't met expectations," said Superior Court Judge Geraldine S. Hines, a black woman who was named in 2001 by Governor Paul Cellucci. "I don't know that it's a priority with him. I'm not saying it isn't, but I'd like to think if it was a priority the numbers would be better."

Advocates have long argued that the judiciary should better reflect the overall population, particularly in a court system that has a high number of minority defendants.

"He ought to be able to do better, of all people," said Renee M. Landers, a professor at Suffolk University Law School and former president of the Boston Bar Association. "I'm not saying it's easy. But I definitely worry that he's not doing better. . . . If you have a few years where the numbers fall off in the appointments process, it's really hard to make up and can have bad effects on the overall system."

Patrick administration officials, including chief legal counsel Ben Clements, have held meetings with bar associations that represent minorities to encourage them to apply for judicial openings. The governor himself has placed personal phone calls to recruit minority lawyers to apply for judicial openings, but that has not yielded results.

"A lot of the response is - these are prominent lawyers and so forth - is that the screening process is grueling and the compensation is not very good," Patrick said. "I have had that feedback, and it concerns me."

One of the two minority-group members nominated by the governor was a Hispanic woman, Angela M. Ordoñez, who in August was appointed as a Probate and Family Court judge in Norfolk County. The other was Steven E. Thomas, an African-American who in April was appointed as a judge in Cambridge District Court.

Expectations have been higher for Patrick to appoint minority judges because of his own background, observers said.

"It may be because he's an African-American governor, we expect more African-American applicants," said Cambridge District Court Judge Severlin B. Singleton III. "My expectation was I'd see more African-Americans, Hispanics, or women."

According to figures kept by the Supreme Judicial Court, 40 of the state's 391 judges are members of minorities, or 10.2 percent, and 124 are women, or 31.7 percent. About 20 percent of the state's population are members of minorities, and nearly 52 percent are women.

About 7 percent of Patrick's nominees have been from minority groups and 38 percent have been women.

During Governor William F. Weld's first two years in office, nearly 15 percent of his 48 nominees were from minorities, including three blacks, three Hispanics, and one Asian. Weld also appointed the first and only black justice on the state's highest court.

During Cellucci's first two years as governor, three of 34 appointees were from minorities, or 8.8 percent.

Governor Mitt Romney faced criticism that he was not nominating enough women or minority-group members to the bench. Of the 19 nominations he made during his first two years in office, there were two from minorities, 10.5 percent.

Patrick's selection of 11 women among his 29 judicial nominations has pleased advocates.

"I think that he is committed to diversity, and I think he's shown that through the nomination of so many women," said Kathy Jo Cook, president of the Women's Bar Association and founding partner of Yarashus Wagner Cook Freiberger & Washienko.

In addition to the high number of women appointed, at least four of Patrick's 29 nominees are openly gay.

Representatives of minority groups said they share in the blame for their underrepresentation in the courts and were reluctant to criticize Patrick for what they see as a national issue. The problem stems, they said, from a small pool of people of color in law schools and high-powered legal practices.

"There's some pipeline issues they have; there's not a lot of minority lawyers in Massachusetts," said Damon P. Hart, president of the Massachusetts Black Lawyers Association and a partner at Holland & Knight. "The numbers are ridiculous. I had a better chance of going to the NFL than coming here to become a partner."

When judicial vacancies occur, applications are first reviewed by the Judicial Nominating Commission, which is composed of 21 lawyers appointed by the governor.

The commission reviews applications, interviews candidates, and chooses three to six candidates to recommend to the governor. From that list, the governor nominates a judge, who then must be approved by the Governor's Council, an eight-member body elected by voters.

The application process is confidential, so it is difficult to tell whether few minority candidates are applying or if those who are applying are not being nominated.

"We're certainly not content and complacent," said Lisa C. Goodheart, chairwoman of the Judicial Nominating Commission. She said some commissioners have been trying to identify ways to encourage minorities to apply.

"We want to do our part to enable the governor to make a set of nominations that, viewed over time, will be a very good record," Goodheart said.

"I want the judiciary to reflect the richness of diversity in the Commonwealth generally," Patrick said. "We're obviously going to have to do a better job."

Matt Viser can be reached at maviser@globe.com.

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