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Blog Post  How a judge is selected in Massachusetts

  • Trial Court Law Libraries

In the United States, some states elect their judges, while in others they are appointed.

Judges in Massachusetts are appointed by the governor with the advice and consent of the Executive Council, also known as the Governor’s Council.  This has been so ever since 1780, when the Massachusetts Constitution was established.  [See the Massachusetts Constitution Part 2, Chapter 2, Section 1, Article 9.]

Judges serve lifetime appointments, with mandatory retirement at age 70. (Originally, in 1780, the Massachusetts Constitution gave judges lifetime appointments with no age limit. In 1972 an amendment to the Massachusetts Constitution [Article XCVIII] made retirement mandatory at age 70.)

The eight (originally nine) members of the Governor’s Council are elected from their respective districts every two years. Five members must be present to make a quorum.  The Lieutenant Governor also sits on the Council, ex officio, and may be called upon by the governor to serve as a tie breaker. [Massachusetts Constitution, Part 2, Chapter 2, Section 3, Article 1.]

Since 1975, each governor has issued an executive order creating a Judicial Nominating Commission to screen potential judicial candidates for the governor. The members are distinguished volunteers selected by the governor, serving for one year at the governor’s pleasure.

There is no law or constitutional provision that states that a judge should have a background as a lawyer, but the governor’s Executive Order states the educational and work experience that a successful candidate should have.  (No non-lawyer has advanced to become a judge in modern times.)  Qualifications include membership in the bar and a minimum number of years of legal experience in the court. The current qualifications may be found in Governor Baker’s (2015) Executive Order 558.

In addition, the Massachusetts Bar Association, in association with local bar associations, participates in the selection of judges by offering its opinions on the candidates through the Joint Bar Committee (JBC) on Judicial Appointments.

The Massachusetts Bar Association’s, A Guide to the Massachusetts Judicial Selection Process: the Making of a Judge,  (3rd ed., 2015) details the judicial selection process, and describes the measures that have been put in place to reduce political influence in the selection of judges, including with regard to the JNC (Judicial Nominating Commission).  “The JBC was formally established in 1961 and the committee has played a role with every administration in evaluating the qualifications of judicial applicants. The committee works with the governor’s chief legal counsel, on a confidential basis, in serving as the final independent check and balance on those individuals selected by the governor for nomination. In other words, the committee operates after an individual is approved by the JNC, selected by the governor, and prior to their submission to the Governor’s Council. “

The National Center for State Courts has an excellent, brief description of the process of appointing judges in Massachusetts, as well as for removing them.

The Massachusetts Trial Court Law Libraries have a web page devoted to “Law About Judges”, which includes more general information.

Chief Justice of the Supreme Judicial Court in Massachusetts, Edward F. Hennesseywrote in his book Excellent Judges(1997):

“…that few functions of presidents and governors are more important than the identification and selection of excellent judges, and that appointing authorities must pursue excellence and reject cronyism…We recognize that only in the appointment process can there be true quality control over judicial performance.”  (p. 1)

“It is a cynical abuse of executive power when a judicial appointment is made for the primary reason that the appointing authority seeks capital in her own reelection campaign…..” (p. 3)

“One can only urge that, at all stages from beginning to end of the appointment process, the search should be for excellence, as judged by the experience and the character of the candidates.” (p. 4)

 Written By: Gary Smith

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