Justice Barbara Lenk's Retirement Gives Gov. Charlie Baker Another Opportunity To Fill SJC Seat

Justice Barbara Lenk is set to retire from the Massachusetts Supreme Judicial Court next month. This gives Gov. Charlie Baker another opportunity to fill a seat in the state's highest court. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal ananlyst Daniel Medwed about why the appointment is significant. The transcript below has been edited for clarity.

Joe Mathieu: We should remind people Justice Lenk was the first openly gay person to serve as an SJC justice, [and was] nominated by former Gov. Deval Patrick. And Daniel, you say there's been a lot of chatter about this appointment in local legal circles. Why is it especially important?

Daniel Medwed: Well, a few thoughts on that. So on the one hand, I think every SJC appointment is very important. There are only seven sitting justices on the court, in contrast to the nine on the U.S. Supreme Court, and their decisions are quite possibly even more influential on the daily lives of Massachusetts residents than those of the U.S. Supreme Court. The court is the court of last resort in the Commonwealth — the final arbiter of the law — and it has a long and illustrious history of recognizing robust state, civil and constitutional rights, ranging from giving its blessing to same-sex marriage a dozen or more years before the U.S. Supreme Court recognized it, to expanding Fourth Amendment protections for citizens and others through a broad interpretation of what's an illegal search and seizure.

But on the other hand, I do think this appointment is particularly significant because it does represent Charlie Baker's sixth opportunity to fill a vacancy on the court, and it's coming at a crucial moment in our history when people are paying attention to racial inequity and systemic racism in a way that perhaps we've never seen before.

Mathieu: Number six is kind of amazing, Daniel.

Medwed: It is amazing.

Mathieu: You make a great point. We obsess over the U.S. Supreme Court for obvious reasons: its historic influence on life in America. But in many cases, the SJC touches our lives more directly.

Medwed: Yes, I agree.

Mathieu: [There's] pressure on the governor to fill the spot specifically with a progressive, right? Do you agree with the activists and the commentators who insist that the court must have more diversity?

Medwed: I do. And diversity in various respects: ideological, racial and gender.

So first, of Baker's five appointments so far, four of them are former prosecutors. Not that all prosecutors have a law and order, tough-on-crime mindset, but that experience surely infuses their worldview and how they perceive of criminal defendants claims on appeal. And a huge proportion of the SJC docket consists of criminal cases.

Second, Baker's previous appointments include two women, one of whom, Elspeth Cypher, is openly gay, and the other of whom, Kimberly Budd, is a woman of color. If he doesn't replace Lenk with another woman, that would only leave two women on the court, which strikes me as an improper balance from the perspective of gender. Perhaps even more notably, Justice Budd is the only person of color on the court. And given that the SJC really is that last line of defense to protect the interests of the minority from the whims of the majority as reflected by the decisions of our elected legislature and governor, I think it's critical for the court's own demographics to loosely mirror those of the community it's supposed to serve.

Mathieu: Any guess on who he'll tap?

Medwed: Oh, gosh, my crystal ball isn't working well these days. I really don't. Some activists are pushing a very particular slate of progressive candidates. I suspect that some of them might not appeal to a famously moderate Republican like Charlie Baker, but I do think he will prioritize candidates of color, and for good reason, given the outrageous lack of diversity on the court and at the moment in which we live — the zeitgeist in the aftermath of the murder of George Floyd.

Mathieu: Would you ever consider throwing your hat into the ring, Daniel? We might nominate you.

Medwed: I'm happy with my current jobs. An often-told joke about law professors is those who can't practice, preach, and I'm quite content to preach. It's much easier to lob critiques from the bleachers than it is to step up to the plate and take a swing. So I'm quite content right now.