SJC nominee’s record is hotly disputed at hearing

By John R. Ellement
Globe Staff / April 28, 2011

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In the space of seven hours yesterday, Barbara A. Lenk was both savaged as an immoral participant in a plan to convert children into homosexuals and lauded as a learned and compassionate lawyer and mother whose wisdom is sorely needed by Massachusetts.

Lenk, an appellate judge who is Governor Deval Patrick’s choice to fill an open seat on the Supreme Judicial Court, would be the first openly gay member of the state’s highest court. She wed her partner following the SJC’s landmark decision legalizing same-sex marriage.

During her confirmation hearing before the Governor’s Council, some critics testified that her marriage is part of a broader plan to give legitimacy to homosexuality in the public arena.

“This will be a clarion call to all that want to indoctrinate our children into homosexuality,’’ testified Sally Naumann, who, like Lenk, lives in Carlisle. “How will we ever be able to say no to our children?’’

Lenk was also denounced by members of the Fatherhood Coalition, who said some of her Appeals Court decisions showed bias against shared parenting. They said she is typical of judges who routinely discriminate against fathers in child custody cases.

But her supporters were equally numerous and equally vocal at yesterday’s hearing.

They described her as a loyal friend, a mentor with limitless patience, and an intellectual powerhouse who spent four years obtaining a doctorate in philosophy at Yale University because she found it a “a pleasant diversion.’’

At least three members of the Governor’s Council objected to critics who focused on Lenk’s sexual orientation, telling them they will not be swayed by that issue when they vote.

With her wife, lawyer Debra Krupp, and their two teenage daughters sitting behind her, Lenk was stone-faced during the criticism.

Lenk vowed to be a judge who hews to the law and will not be what critics call an activist judge. She also balked when asked to list the cases she handled that dealt with gays or lesbians.

“I don’t keep records that way,’’ she said. “I don’t regard these cases in any way of being homosexual or lesbian issues.’’

At another point, Lenk fought to control her emotions when a friend described her decades-long devotion to her mother, which continued when she was brought to Lenk’s home for hospice care.

Lenk spent three hours parrying questions from council members, insisting she would not discuss legal issues that may land before her if she joins the SJC.

Councilor Charles O. Cipollini demanded to know whether Lenk believes Massachusetts law allows a person to choose to end their lives. When she declined to answer, he became frustrated.

“I’m not going to get anything out of you unless I file a suit,’’ Cippolini grumbled.

“Not today,’’ Lenk shot back softly.

While allies defended some of her rulings, Lenk herself clarified the meaning of a 2010 decision involving the prosecution of two brothers and their sister on incest charges.

Council member Mary-Ellen Manning questioned whether the way the Appeals Court ruled spared same sex-parents from being prosecuted for sexually abusing their children. But Lenk later explained that the ruling involved a case based on the law in effect in 2001, a law is that is no longer on the books. .

Manning also questioned whether Lenk ever notified her Appeals Court colleagues that Krupp was her spouse before Krupp appeared before the court as an appellate lawyer for the state Committee for Public Counsel Services.

Appeals Court Chief Justice Phillip Rapoza said judges routinely provide him with a recusal list detailing cases they cannot handle because of a conflict of interest or some other ethical concern.

Rapoza said he did not know Krupp was Lenk’s wife when Krupp appeared before him in 2010, a ruling that went in favor of her client.

Council member Terrence W. Kennedy, a lawyer, faulted Lenk on the issue. “I think you made a mistake,’’ he told her. “I think it should have been disclosed.’’

Lenk said that she does not discuss her cases with Krupp and that Krupp does not discuss her clients with Lenk. Lenk also said she has paid close attention to ethical issues and will do so in the future.

“I’ve always recused myself from anything that Debra touched,’’ Lenk said. “Any case that she has been involved with, I do not have anything to do with.’’

The hearing was not without moments of humor, especially when the long hearing was still being held after 7 p.m. last night. One of the councilors jokingly complained that the Boston Bruins game had begun.

Without missing a beat, Lenk said with a smile. “Oh, I’m sorry,’’ she said. “Yes, sports.’’