Tuesday, August 09, 2005

Backgrounding Judicial Nominees

Following the outrageous report that the New York Times was looking into the adoption of John Roberts' adoption of two children, one might closely consider the necessity and importance of vetting the backgrounds of judicial candidates.

In the first instance, it is the responsibility of the Executive (Governor or President) to perform his or her own examination of the background of the candidate. Setting aside the candidate's political philosophy (which, regrettably, is almost an irrelevancy here in Massachusetts), it is essential to the public's confidence in the judiciary that judges be intelligent, temperate, experienced in the law, and (here it comes) that they don't bring any baggage to the position that would cause their actions on the bench to bring disrepute or disrespect to that very essential branch of government.

An effective Executive with a team of seasoned professionals working for him will be able to spot trouble before it arises -- or, alternatively, as has been the past in Massachusetts (and I'll bet most every state), a Governor's relationship with a particular candidate will trump whatever questions about competency, temperament or bias. In some of these cases, the body that ratifies judicial selections (here the all-impotent Governor's Council) will do so notwithstanding the candidate's weaknesses (typically when the candidate is as wired with the Council as s/he is with the Governor.

Here in Massachusetts, the risk of such an occurrence has been presumably reduced with the establishment of a Judicial Nominating Commission, whose job it is to review and recommend candidates for the judiciary to the Governor. According to their website, they seek "men and women of the highest quality whom by temperament, ability and integrity will freely, impartially and independently interpret the laws and administer justice." Pursunt to an Executive Order establishing the Commission, the JNC is the arbiter of first resort on an applicant's qualifications, which are reviewed initially by the JNC without knowledge of the identity of the applicant. There follows an elaborate and extensive review and due diligence process that may or may not result in an applicant's name being forwarded to the Governor with the JNC's imprimatur of "qualified."

With all of these highly proper safeguards in place, it would come as a grave disappointment that an applicant for the jduiciary would pass through the crucible of such a process with some serious and obvious skeleton in his or her closet.

Consequently, I am perplexed to have found a story in the Boston Herald this morning that appears to portray a rather gaping insufficiency in the Commission's work.

A top Bristol County prosecutor up for a juvenile court judgeship allegedly recently told her ex-husband she should ``just shoot'' him as their bitter custody battle rages in Plymouth Probate and Family Court, records show.

State police Sgt. Barry J. Domingos claimed that his ex-wife, former homicide prosecutor Renee Dupuis, said: ``We would be better off if you were dead. I should just shoot you,'' according to a June 6 affidavit reviewed by the Herald. ....

....The Herald reported Saturday that Dupuis and Domingos were in a nasty legal war over the care of their daughter. In a deposition Dupuis gave to her ex-husband's attorney in 2001, she accused him of physical violence during their 10-year marriage. Domingos, in turn, accused Dupuis, 44, of drinking to excess during the marriage. Both have vehemently denied the accusations. ...

... Domingos has also accused Dupuis in court documents of failing to buy proper clothing for their daughter, calling him ``dumber than dirt,'' and allowing her dog to urinate and defecate on his lawn.

Dupuis, meanwhile, has accused Domingos of physical violence toward her during the marriage, calling her a ``lush'' and a ``drunk'' in front of their child, and taking the child out of school without Dupuis' knowledge, court records show.

Now, I am not suggesting that every potential judicial candidate that has gone through a nasty divorce should per force be disqualified from appointment to the bench. While I have successfully evaded any involvement in a divorce case in my 25 years of legal work, I surely understand that divorcing couples say some exceedingly nasty things about one another, many of which may be wholly fictional. But what appears unusual in this case is that the JNC's process of due diligence did not discover this sordid record before forwarding the candidate's name to the Governor, and have only now been asked to investigate it.

Having done a fair share of litigation in the Commonwealth's courts, I have come upon too many instances where sitting judges bring their personal biases to their job (sometimes blatantly so). In no other venue is this more prevalent than the probate and family court, where sexual biases (blatant or subtle) can have a significant impact on a litigant because the court, by its nature, deals frequently with issues affecting the relationships of spouses and their children.

While this is perhaps less true in the juvenile court, the court does deal with involving the care and protection of children, termination of parental rights, guardianship and other family matters, and hence, a juvenile court judge must look inside the family dynamic on a daily basis in making her judgments. A judge who has experienced her own bitter family dissolution cannot help but find it difficult to set those feelings aside in judging the circumstances of the litgants before her.

It is almost an unrealistic demand that we place on judges, to remove from their mind's eye all pretense of personal opinion while determining the rights of others. And yet we must demand it, because the application of the law according to an individual judge's personal perspective results in uncertainty and inequality of outcome. The public thus loses confidence and respect for the institution and its judges.

We do the public and the applicants a disservice when we don't assiduously ensure that candidates are free of the scars and deformities upon which they will be compelled to render judgment in the future.

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