Polito plan to preside at SJC hearings generates backlash from councilors

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STATE HOUSE, BOSTON, JUNE 15, 2016….Not one of Gov. Charlie Baker’s Supreme Judicial Court nominees has even fielded a question, but already bad blood between the administration and the Governor’s Council spilled over Wednesday when half the council objected to Lt. Gov. Karyn Polito’s intention to preside over their confirmation hearings.

Baker and Polito nominated three Superior Court judges – Kimberly Budd, Frank Gaziano and David Lowy – on Tuesday to fill vacancies opening up on the state’s highest court by retirements this summer.

Though councilors typically preside over confirmation hearings of judicial nominees from their district, it has been common practice in recent years for the lieutenant governor, who is president of the Governor’s Council, to preside over hearings for spots on the top court. The latest nominees hail from the districts of Councilors Christopher Iannella, Terrence Kennedy and Marilyn Devaney.

Four of the eight elected members of the Governor’s Council, however, objected on Wednesday to Polito’s intention to preside over the upcoming hearings, challenging her at a public meeting to explain why after never attending a hearing for previous nominees to lower courts she wants to wield the gavel now.

“Karyn Polito has never attended one Governor’s Council hearing ever since she’s been lieutenant governor and suddenly she wants to be in the spotlight,” Councilor Eileen Duff said in an interview. “This is all about publicity, it’s all about press and it’s all about Karyn Polito. It’s not about the Governor’s Council and it’s not about the candidates. It’s absolutely disrespectful and outrageous.”

Councilor Robert Jubinville, one of the four to object, said his fellow councilors were either loyal to the council or loyal to the administration. “You can’t be both,” he said.

While flare-ups between the council and past administrations have been relatively common, this council’s relationship with Baker has so far been cordial with no nominees so far being rejected. Gov. Baker even signed into law a pay raise for the council as part of this year’s budget.

That could be changing.

“This administration is not setting these people up very well now for not having a whole lot of tie votes coming up,” said Duff.

The confrontation began when Councilor Marilyn Devaney, who has in her career presided over several hearings for Supreme Judicial Court nominees, asked Polito why she was “choosing not to allow me or my colleagues to preside?”

“Why don’t you preside over all the hearings then? Why is it important for you to take our duties?” Devaney asked.

Polito responded by reading from a section of the constitution that defines her role as president of the council, and citing past precedent in both Republican and Democratic administrations. Some councilors said the constitution refers only to general voting assemblies of the council, and not confirmation hearings, which are not required by law.

“Historically, lieutenant governors have presided over the hearings of the SJC nominees, including, as far as I can research, Lieutenant Governors (Timothy) Murray and (Paul) Cellucci dating back to the 1990s so there’s tradition, there’s precedent and there’s the constitution and I’m not doing anything different than those that have come before me and I’m not aware of circumstances that have changed to warrant a departure from what has been done in the past,” Polito said.

Murray presided over at least four Supreme Judicial Court confirmation hearings before he resigned from Gov. Deval Patrick’s administration, leaving the position of lieutenant governor vacant.

“Murray at least asked,” Councilor Christopher Iannella told Polito.

Before Justice Barbara Lenk’s confirmation hearing in 2011, Devaney briefly pushed to be able to preside, but relented to Murray’s desire to preside as he had for past Patrick nominees to the SJC. “Let him do it. It’s his few minutes of fame, so give it to him,” Devaney said at the time.

This time, however, Devaney is not alone in objecting.

“If you’re doing it for publicity, I would suggest you got plenty of publicity yesterday. There is no reason why you’d do this other than to try to help your candidates through and I suggest that creates a conflict in and of itself,” Jubinville told Polito.

Jubinville admitted that the chance for a day in the spotlight had some appeal to councilors as well.

“I don’t know why do you want to take it away from us. This is a chance for councilors to do a hearing like we did with Judge (Ralph) Gants, to get some publicity and you’re taking it away,” he said.

Polito said her only objective is to have a “fair, open, professional, well-organized process,” a comment that also drew the ire of councilors. Jubinville called it “insulting and demeaning” to suggest a councilor couldn’t run a fair hearing, and said, “I hope she apologizes for that remark.”

Duff, a Gloucester Democrat who touted Democrat Mike Lake’s run for lieutenant governor in 2014, took it further, saying that if Polito is concerned about fairness the administration should release the names of the finalists for the three nominations and Polito should recuse herself in the event that a tie on the council would give the tie-breaking vote to the lieutenant governor.

“This is a respect issue. That’s what this is about. This administration doesn’t ask. This administration tells. This administration is arrogant. This is Charlie Baker does what Charlie Baker wants and nobody in this building calls him out on it, not one Democrat in our leadership,” Duff said. “There is never a discussion with this administration. It’s a dictatorship. You’re told what is going to happen.”

Not all of the councilors agreed with their colleagues. Councilor Michael Albano said it was the administration’s “prerogative, whether we like it or not.” “I’m a Democrat, they’re a Republican, they won,” Albano said.

Councilor Terrence Kennedy, who counts Lowy as a constituent, also said he believes it’s up to the administration to decide, and Councilor Jennie Caissie, the only Republican on the council, said Polito’s presence would “add an aura of importance” to the proceedings.

“I don’t think anybody should be taking or making this personal. It’s a little absurd, quite frankly,” Caissie said.

The only discussion of the three nominees’ qualifications came after the meeting Wednesday when, in an interview, Duff questioned why not one of Baker’s picks came from the appellate court, which would have given them more experience to deal with the “tremendous amount of writing” that they’ll have to do if confirmed to the SJC.

Jubinville said he didn’t think the spat would influence the hearings. “I don’t think we’re going to take it out on some nominee because we’re having a problem with the administration,” he said.

In a statement, Baker press secretary Billy Pitman reiterated Polito’s intention and right to preside over the hearings: “The Governor was pleased to nominate three very experienced and highly respected judges to vacancies on the Supreme Judicial Court and looks forward to their consideration by the Governor’s Council. Lt. Governor Polito looks forward to chairing the nominees’ hearings as past lieutenant governors have done under Governors’ Weld and Patrick,” Pitman said.

The council did manage to schedule hearings for all three nominees in the newly renovated fourth-floor Senate hearing room starting with Gaziano on July 6, Lowy on July 20 and Budd on Aug. 3.

“Can we set a date and I’ll buy the first round at the 21st after you’ve all calmed down, kissed and made up,” Caissie said.

Copyright 2016 State House News Service

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