Cypher appears lock for confirmation to state highest court

Appeals Court Chief Justice Scott Kafker said Cypher has a "nimble intelligence"

Supreme Judicial Court nominee Elspeth Cypher listened as Rep. Chris Markey, who worked with her in the Bristol County District Attorney's Office, testified in favor of her confirmation. [Photo Gallery: Sam Doran/SHNS]

BOSTON, Mass. (State House News Service) – Gov. Charlie Baker’s nominee for the Supreme Judicial Court, who appears likely to win confirmation, saw up close the power of that court to alter lives, when the ruling in the Goodridge case legalizing same-sex marriage allowed her to wed her wife.

“In the year 2003 I experienced directly the impact that the Supreme Judicial Court can have on an individual’s life when the court issued the Goodridge decision,” Appeals Court Senior Justice Elspeth “Ellie” Cypher said at her confirmation hearing Wednesday. “My life partner was now deemed valid in the eyes of the law, but most importantly it was protected, and my family was then protected.”

Cypher married Sharon Levesque two years later, in 2005, she told the News Service. The couple, who live in Assonet, have one son.

The U.S. Supreme Court subsequently made gay marriage the law of the land. When asked about the possibility of that changing, Cypher on Wednesday said, “I don’t take anything for granted on the federal level or even on the state level in some ways.”

After more than five hours of a hearing before the elected Governor’s Council, which vets judicial nominees and votes on their nominations, a majority of the councilors expressed their support for Cypher and councilors predicted she would be confirmed unanimously.

Speaking before the eight-member council, the 58-year-old judge was unequivocal in her support for a woman’s right to choose an abortion.

“A woman has the absolute right to bodily integrity and the right to choose is absolute,” Cypher told Governor’s Councilor Joe Ferreira, a Somerset Democrat.

Cypher’s statement was heartening for Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts, who expressed concern ahead of the hearing that a U.S. Supreme Court stocked with President Donald Trump’s nominees could erode federal protections for women’s reproductive health care decisions.

“It was really fantastic to hear Judge Cypher so forthrightly say that she believes in the right to choose,” Holder told reporters.

Cypher is Baker’s fourth nominee to the seven-member court, and his first three were each confirmed unanimously last year. All of Baker’s SJC nominees have had backgrounds as prosecutors, and the first three stepped from the Superior Court to the John Adams Courthouse, where the farthest-reaching interpretations of state law and the constitution are made.

Cypher has served on the Appeals Court since 2000 after the late Gov. Paul Cellucci nominated her. She said she wished Cellucci and the late Appeals Court Justice Kent Smith, who she said taught her to write an opinion, were able to be at her confirmation hearing.

Born in Pittsburgh, Pennsylvania, Cypher never met her biological father, who she said was “cursed by addiction.” According to an earlier application she made to the council, Cypher went by Elspeth McCoy until the age of 5. For her first five years she lived with her mother’s family in southwestern Pennsylvania before her mother remarried and moved to New York State.

Governor’s Councilor Terrence Kennedy, a Lynnfield Democrat and opponent of capital punishment, found Cypher’s personal opposition to the death penalty somewhat lacking, saying, “You kinda hedged on the death penalty.”

The Supreme Judicial Court long ago outlawed the state’s prior death penalty statute.

“I’m not in favor of it. I don’t think it works. I don’t think it’s a good choice for society to make,” Cypher responded. She said crafting a death penalty that passes constitutional muster in Massachusetts would be “very difficult.”

A former Bristol County prosecutor, Cypher said she could understand why some would have wanted the death penalty for James Kater, whom she prosecuted for the brutal kidnapping and murder of Mary-Lou Arruda and who later died in prison.

The governor has expressed interest in reinstating the death penalty for murderers who kill police officers.

Governor’s Councilor Jennie Caissie, an Oxford Republican, asked the nominee about sanctuary cities, municipalities that seek to protect undocumented immigrants by limiting their cooperation with federal immigration authorities. Caissie said she calls them “outlaw cities.”

“It is the job of the executive to enforce the laws. I’m not sure I understand the legal basis for a policy to not do that. I would have to look at it closely,” said Cypher, who said she wanted to maintain her impartiality on the subject.

Cypher went to Emerson College, “fell in love with Massachusetts and its history,” and after running into a former professor in the Back Bay on her way home from a secretarial job, Cypher was convinced to go to law school, studying at night at Suffolk Law School, she said.

Those who have known Cypher through her legal career and friendship praised her prose, fidelity to the law and sense of humor.

“She stands out as someone to whom laughter comes quite naturally,” Philip Rapoza, the retired former chief justice of the Appeals Court, told the Governor’s Council. “And if there’s a target for her laughter, it’s usually herself.”

Criminal defense attorney Kevin Reddington told the council Cypher “really knows how to turn a phrase,” and said she is a “workhorse, and everybody knows it.”

Hearing Audio: Part 1 | Part 2

Rep. Chris Markey, a Dartmouth Democrat who worked in the Bristol County District Attorney’s Office, said Cypher was the office’s “moral compass.”

Appeals Court Chief Justice Scott Kafker said Cypher has a “nimble intelligence” and has become his “most trusted advisor.”

Kafker said the Appeals Court is tasked with rendering decisions “more narrowly” than the Supreme Judicial Court, which issues “broader rulings.”

Cypher completed course work for a master’s degree in rhetoric and communication at Kent State University in 1980-1981 before deciding she didn’t want to study there and moving back to Boston. A decade earlier, the National Guard shot and killed four students protesting the Vietnam War at the school.

Governor’s Councilor Robert Jubinville, a Milton Democrat, questioned Cypher on that subject.

“It was not a demonstrating kind of place when I was there,” Cypher said.

Cypher is a member of the Association for the Prevention of Cruelty to Animals, according to her questionnaire to the Governor’s Council, which also discloses that her wife donated $100 to Hillary for America in 2015.

Copyright 2017 State House News Service