Executive Order  No. 566: Order constituting the Supreme Judicial Court Nominating Commission

WHEREAS, the Constitution of the Commonwealth of Massachusetts, Part One, Article XXIX, guarantees the people of the Commonwealth the right to judges who are as “free, impartial and independent as the lot of humanity will admit;” and

WHEREAS, under the Constitution and laws of the Commonwealth the Governor is charged with the responsibility to nominate and appoint, with the advice and consent of the Governor’s Council, all judicial officers; and

WHEREAS, the quality of the Commonwealth’s judicial system is determined largely by the quality of the judicial officers who serve within it; and

WHEREAS, public trust and confidence in the judicial system begins with the process by which judges are appointed to the bench; and

WHEREAS, the pre-eminent qualities for service as a judicial officer are intellect, integrity, work ethic, judgment, temperament, experience, competence and a demonstrated commitment to sensibly, intelligibly, promptly, impartially and independently interpret the laws and administer justice; and

WHEREAS, judicial applicants should be drawn from a cross-section of our community, and should represent not only geographically diverse regions of the Commonwealth, and also the racial, ethnic, and gender diversity of our citizens; and

WHEREAS, the highest caliber of judicial appointments can best be assured by the use of a non-partisan, non-political, non-compensated Commission composed of outstanding citizens in aid to the discretion reposed in the Governor, drawn from all quarters of the Commonwealth and a cross-section of its diverse population; and

WHEREAS, there will be a number of vacancies on the Supreme Judicial Court in calendar year 2016 and additional vacancies thereafter, and it is in the best interest of the Supreme Judicial Court and the Commonwealth that such vacancies be filled expeditiously to allow the court to continue its work with minimal disruption.

NOW, THEREFORE, I, Charles D. Baker, Governor of the Commonwealth of Massachusetts, by virtue of the authority vested in me by the Constitution as Supreme Executive Magistrate, Part 2, c. 2, § I, Art. I, do hereby order as follows:

Section 1.0  Commission and Scope.  A Supreme Judicial Court Nominating Commission (“SJC-NC” or “Commission”) is hereby established to identify and invite application by persons qualified for service on the Commonwealth’s highest court, to evaluate such applicants, and to make recommendations to the Governor as to whom he should nominate.

1.1 Membership.  The SJC-NC shall consist of 12 persons appointed by the Governor (“Commissioners”), who shall serve at the pleasure of the Governor and may be removed without cause at any time.

1.2 Chair.  The Governor shall appoint a Chair or Co-Chairs (hereinafter referred to as “Chair”) who shall serve at his pleasure. The Executive Director of the Judicial Nominating Commission (“Executive Director”) shall serve as the Clerk to the SJC-NC during meetings and assist the Chair as requested.

1.3 Qualification of Members.  Commissioners shall have knowledge of the judicial system and experience in the needs and operation of the Massachusetts courts in general and of the Supreme Judicial Court in particular. Commissioners shall be members of the bar in good standing and shall have at least fifteen years of relevant experience.

1.4 Impartiality.  No Commissioner shall act in a manner that reflects poorly upon the judicial selection process or gives the appearance of partisanship or partiality in the consideration of applicants. A Commissioner shall disclose to the SJC-NC all current or past personal and business relationships with a prospective applicant. In addition, a Commissioner shall refrain from voting and absent themselves during discussions concerning (a) any applicant who is the current business or law partner of the Commissioner and (b) any applicant whom the Commissioner believes they are incapable of considering impartially.

1.5 Confidentiality.  Except as otherwise may be necessary for purposes of conducting due diligence of an applicant’s qualifications and during SJC-NC meetings, each Commissioner shall keep confidential all information concerning any applicant. No discussions, motions, opinions, votes or facts revealed during meetings of the SJC-NC may be directly or indirectly disclosed by any Commissioner to any person other than another Commissioner or the Executive Director. Except as may be required to conduct due diligence, all substantive communications with applicants outside of meetings and interviews shall be conducted by the Chair or the Chair’s designee.

1.6 Conflict of Interest.  All Commissioners shall avoid self-promotion in the course of their service and shall not seek any advantage in threatened or pending litigation or in professional or personal relationships based on their service or membership on the SJC-NC. It is inappropriate for any Commissioner to distribute business cards, firm letterhead, or advertising that make reference to SJC-NC membership. It is appropriate for a Commissioner to include the fact of appointment on the Commissioner’s resume. No Commissioner or immediate family member of a Commissioner may accept a gift or anything of value from any applicant, or any immediate family members of any applicant, unless the Commissioner has a bona fide friendship with the applicant and recuses themselves from participation in consideration of the applicant.

1.7 Civility.  All Commissioners shall display courtesy and respect to all applicants as well as to other Commissioners. Questioning of applicants that resembles cross-examination of a hostile witness is inappropriate.

1.8 Advocacy.  After the SJC-NC certifies the names of qualified applicants to the Governor, no Commissioner shall attempt, directly or indirectly, to further influence the decision of the Governor, except in response to communications initiated by any of them. No attempt shall be made to comment publicly or to disclose any preference of the SJC-NC concerning applicants.

1.9 Recruitment of Applicants.  The Governor’s Chief Legal Counsel, the Executive Director, and the SJC-NC shall take reasonable steps to ensure, to the greatest degree possible, that the applicant pool from which their selections are made includes talented individuals from all parts of the Commonwealth, reflecting the full diversity of its citizens.

Section 2.0  Applicants.

2.1 Qualifications for Appointment to the Supreme Judicial Court.  The Governor will only nominate applicants for the Supreme Judicial Court who meet the following minimum qualifications.

2.1.1 Bar Membership.  An applicant shall be a member in good standing of the Massachusetts Bar.

2.1.2 Education.  An applicant shall be a graduate from an accredited undergraduate college or university as well as a law school accredited by the Commonwealth of Massachusetts or American Bar Association.

2.1.3 Residency.  An applicant shall be a resident of the Commonwealth of Massachusetts at the time of application.

2.1.4 Experience.  An applicant shall have been a member of the bar for at least 20 years.

2.2  Code of Conduct for Applicants.  All persons applying for appointment as an associate justice of the Supreme Judicial Court must abide by the following code of conduct while their application is pending:

2.2.1 Lobbying Prohibited.  Lobbying for appointment to the Supreme Judicial Court is inconsistent with the dignity of the office. Applicants shall not call or email and shall not cause or encourage other persons to contact any Commissioner (including the Commissioner’s family members or law partners) in support of their application. The Executive Director and the Commissioners may entertain telephone calls that provide material information regarding the fitness of any applicant for judicial office that the caller is reluctant to put in written form out of concern for safety, retaliation, retribution or other legitimate motive. It is appropriate for applicants or persons to return telephone calls or emails initiated by a Commissioner or the Executive Director.

2.2.2 Lobbying of Governor’s Office Prohibited.  Following transmission of the names of those applicants whom the SJC-NC has recommended to the Governor for nomination, applicants shall continue to abide by the restraints on lobbying set forth in Section 2.2.1 above.

2.2.3 Political Contributions to Executive Prohibited.  Commencing with the submission of the application, no person applying for appointment as an associate justice of the Supreme Judicial Court shall make any political contribution to the Governor, Lieutenant Governor or any member of the Governor’s Council at any time while their application is pending and for a period of 18 months after a recommendation to the Governor by the Commission.

Section 3.0 Application Process.

3.1 Form of Application and Instructions.  Subject to the approval of the Governor’s Chief Legal Counsel, the Executive Director shall develop and post on the Governor’s Judicial Nominating Commission’s “JNC’s”) website the application forms to be used by persons applying for the position of associate justice of the Supreme Judicial Court.

3.1.1 Review of Application by Governor’s Council.  The application of any person nominated for the Supreme Judicial Court may be reviewed by the Governor’s Council in the performance of its constitutional duties.

3.2  SJC-NC Process.  The Commission’s process shall include a SJC-NC staff review of the completed application and an initial review, interview and due diligence by the Commission, as set out in this Executive Order.

3.2.1 Staff Review.  The Executive Director is responsible for reviewing all applications for conformity with the required qualifications for judicial officers and compliance with this Executive Order. All applicants are required to comply with the instructions posted on the JNC’s website and failure to do so may result in the rejection of the application. All applications received shall be acknowledged by the SJC-NC staff.

3.2.2 SJC-NC Review.  The SJC-NC shall review all applications and select which applicants will be invited to appear before the Commission for an interview.

3.2.3 Interview.  At the interview of an applicant, a Commissioner may ask any questions which in the Commissioner’s judgment will assist in performing the review of the applicant. All questions and comments shall be courteous, fair and respectful. Questions may concern an applicant’s management and administrative capabilities, decisions or other topics. Applicants may be invited for additional interviews at the discretion of the SJC-NC, including for the purpose of addressing comments received or issues raised during the due diligence process.

3.2.4  Due Diligence.  After the interview, the SJC-NC shall decide whether to advance the applicant to due diligence. The Executive Director or others requested by the SJC-NC may assist in the due diligence inquiries as needed.  

3.2.4.1  Consultation with County Bar Associations.  In connection with the due diligence process, the SJC-NC shall consult with a representative of county or other bar associations with knowledge of the applicant’s personal and professional qualifications.

3.2.5 Deliberations.  After completion of the due diligence process and upon consideration of information obtained during due diligence or otherwise, Commissioners shall deliberate and discuss the relative strengths and weaknesses of applicants. All information raised in deliberations is strictly confidential and shall not be revealed outside the Commission.

Section 4.0 Transmission to Governor’s Office.  The names of the applicants recommended by the SJC-NC for nomination to the Supreme Judicial Court shall be transmitted by the Chair or the Executive Director to the Governor’s Office for review, interview or further due diligence as the Chief Legal Counsel may undertake with the assistance of the Executive Director, SJC-NC staff or others. After review of the applicants recommended for nomination, the Governor may decline to nominate any applicant, seek further recommendations from the Commission, or request that the application process be re-opened for the position.

4.1 Further Investigation.  The Chief Legal Counsel may at any time during the application or due diligence process request the assistance of the State Police Special Investigations Unit, the United States Internal Revenue Service, and the Massachusetts Department of Revenue to undertake further background and due diligence investigation of any applicant under review and may require the applicant to provide releases or further documentation in support of such investigation.

4.2 Joint Bar Committee.  The Chief Counsel may at any time seek the recommendations and assistance of the Joint Bar Committee regarding applicants under review. For each applicant, the Joint Bar Committee shall report to the Governor’s Chief Legal Counsel that the applicant is well qualified, qualified or not qualified for appointment to judicial office. Failure of the Joint Bar Committee to make a recommendation within 14 days from the date of the request by the Chief Legal Counsel shall be deemed to be a “qualified” recommendation, unless the Committee seeks leave from the Chief Legal Counsel in advance of that time for additional time for review for good cause.

Section 5.0 Code of Conduct for Nominees.  After an applicant has been informed that the applicant will be nominated by the Governor to the Supreme Judicial Court, the nominee shall comply with the following code of conduct. Failure materially to comply with the code of conduct may result in the nomination being withdrawn.

5.1 Political Contributions Prohibited.  After nomination, no nominee shall make any political contribution to any person holding or seeking elected office.

5.2 Appearance in Court.  No nominee shall appear as counsel in the Supreme Judicial Court after nomination, except as necessary to seek leave to withdraw from representation, to seek a continuance, to avoid prejudice to a client’s interests or as the court may require. In addition, at the time of an appearance in any court of the Commonwealth, the nominee shall disclose the pendency of the nomination and give opposing counsel or pro se parties an opportunity to object. For the avoidance of doubt, no nominee shall be required to cease practicing law during the pendency of his or her nomination.

5.3 Conformance with Canons of Judicial Conduct.  All nominees shall comply with all pertinent Canons of Judicial Conduct, contained within the Rules of the Supreme Judicial Court, except as a client’s interests may otherwise require within the bounds of the law.

Section 6.0 Publication on Website and Public Distribution.  This Executive Order shall be posted on the Governor’s Judicial Nominating Commission website located at www.mass.gov/jnc and shall be available to the public at no charge.

6.1 Pendency of Recommendation.  Any applicant recommended by the Commission for

nomination to the Supreme Judicial Court may be considered for nomination by the Governor for any judicial vacancy for a period of up to 18 months after the date of the recommendation, at any stage of the application process relating to that vacancy, subject to such updated due diligence as the Governor's Chief Legal Counsel may require.

Section 7.0 Effect of Order.  This Executive Order shall take effect immediately and shall continue in effect until amended, superseded or revoked by subsequent Executive Order.

Given at the Executive Chamber in Boston this 10^th day of February in the year of our Lord two thousand sixteen and of the Independence of the United States of America two hundred forty.