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12.4.2000 00:05
It's politics
as usual in
selection of
chief justice
 The state's Judicial Nominating Commission has only changed the way the political maneuvering takes place.
By JONATHAN D. ROCKOFF
Journal
Staff Writer
12.5.2000
CORRECTION/CLARIFICATION
During the Judicial Nominating Commission's selection of finalists for chief justice of the state Supreme Court Nov. 29, two commission members, Sharon Burgess and William Rampone, voted against Supreme Court Justice Robert G. Flanders Jr., not Superior Court Judge Michael A. Silverstein as reported in The Journal yesterday. Both Burgess and Rampone voted for Silverstein. Rampone, a lawyer, said he highly respects the work of Silverstein, and that any impression that he and Burgess took concerted action against Silverstein is incorrect.
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After two politically connected chief justices resigned amid scandal, the Judicial Nominating Commission was established six years ago to make sure judges earned their positions based on merit, not politics.
But neither politics nor politicking was removed, as shown by events between Chief Justice Joseph R. Weisberger's retirement announcement last September and the commission's selection, late Wednesday, of finalists for his successor.
According to commission members, court officials, judges and lawyers, the merit selection of judges has only changed the terms and conditions under which the politicking operates.
They said the selection of a new chief justice has been characterized by maneuvering -- from potential applicants' decisions whether to apply, to some applicants' currying support, and to the deliberations of the commission.
"Like any other board or commission, be it the Moses Brown board or the Board of Regents, there's always a little politics -- with a small 'p,' " said C. June Tow, a member of the Judicial Nomination Commission.
The maneuvering has been brought into sharp relief by Weisberger's planned departure in February. Six judges applied for his seat. On Wednesday, the commission chose five finalists.
They are Supreme Court Justices Victoria S. Lederberg and Robert G. Flanders Jr., Family Court Chief Judge Jeremiah S. Jeremiah Jr., and Superior Court Judges Francis J. Darigan Jr. and Frank J. Williams.
Since it can pick up to five finalists, the commission needed to exclude only one applicant. That turned out to be Superior Court Judge Michael A. Silverstein, who was held in high regard by lawyers and fellow judges.
"I believe that the process was fair," Silverstein said a day after winning enough votes to become a finalist under commission rules but securing the fewest votes among the six candidates, and thereby losing out.
But court officials and lawyers noted that Silverstein was the least politically connected among the six candidates.
They said he did not lobby much, if at all, for chief justice, and he had a minimal history with political leaders.
In addition, Silverstein last year issued a decision that favored the governor in his dispute with the General Assembly over the balance of power in state government. The Supreme Court later reversed the ruling.
On Wednesday, Sharon Burgess and William Rampone, who were appointed by House Speaker John B. Harwood to the Judicial Nominating Commission, both voted against Silverstein.
WITH SILVERSTEIN
out of the running, the appointment of the next chief justice clearly moves into the realm of politics.
Before making his selection, Republican Governor Almond plans to interview the finalists individually, and ask them about administering the courts and their goals for the courts, his legal counsel said.
Jeremiah, who has led the Family Court since 1987, and Williams, well-known for his Abraham Lincoln scholarship, are considered the favorites, due to their longstanding involvement in the Republican Party.
Both houses of the state legislature must confirm the governor's choice.
In 1997, the House Democratic leadership engineered the rejection of Almond's nominee to the Supreme Court, Margaret E. Curran.
This year, House Speaker Harwood has indicated his opposition to Flanders, because Flanders dissented from a Supreme Court opinion upholding the wide powers enjoyed by the legislature.
Many who acknowledge that politics infuses merit selection of judges do not believe it such a bad thing.
They said judges must have political antennae, if only to appreciate the human dimensions of their legal decisions.
They added that the chief justice, who oversees a $60-million budget and nearly 700 employees, must be someone who can work with the governor and legislature on financial and other administrative matters.
"Particularly for the chief justice, in a larger sense there may be a place for political considerations," said Alan S. Flink, a Providence lawyer and former member of the commission, who has criticized legislative influence over the body.
"I am still satisfied," he said, "that this system is better than what existed previously, particularly when it comes to the Supreme Court, when it was, for all intents and purposes, the selection of the Speaker of the House."
Before the Judicial Nominating Commission was established by constitutional amendment, in 1994, justices of the Supreme Court were selected by a vote of the Grand Committee, the entire General Assembly.
The process encouraged backroom dealing, and the appointment of influential legislators to judgeships.
Joseph A. Bevilacqua rose from House speaker to chief justice. He resigned, in 1986, facing impeachment on allegations of associations with criminals and using court employees for personal matters.
Thomas F. Fay, who was chairman of the House Judiciary Committee and a friend of the House speaker, was appointed a Family Court judge and later replaced Bevilacqua as chief justice. He resigned, in 1993, facing impeachment.
The Journal reported that Fay had funnelled legal work to a business partner and operated a secret account to pay for liquor, parties and a business trip to Fenway Park.
The Judicial Nominating Commission formed after Fay's departure.
It was supposed to take politics out of judicial selection.
Some commission members said it has. Others, however, said the commission's proceedings are somewhat political, particularly the closed sessions before votes, during which the nine commissioners lobby for their candidates.
"It's highlighting a candidate's strengths or weaknesses," said Tow, one of four non-lawyers on the commission. "Those are factors. I consider that a factor in the decision-making process."
THIS YEAR,
politics and politicking swirled around the process for merit selection of a chief justice even before Weisberger announced his intention to retire.
In April, the House Judiciary Committee passed a bill that would have stripped the governor of power to choose a chief justice and given it to the Supreme Court itself, but the House leadership later tabled the measure.
After Weisberger's retirement announcement, several judges and lawyers considered applying. Court officials and lawyers said few did after learning of other applicants and fearing the embarrassment of not being a finalist.
Most of the applicants solicited letters of recommendation or supporters to testify before the commission. Court officials and lawyers said Jeremiah and Williams were the most aggresive.
Both Jeremiah and Williams asked U.S. Sen. Lincoln D. Chafee, a Republican, for recommendations, a Chafee spokesman said.
Jeremiah secured the support of the chief judges of the Superior, District and Workers' Compensation Courts.
More than 250 supporters from across the country mailed letters on behalf of Williams.
Last month, before the commission began interviewing the candidates, Burgess announced that she had resigned her membership. Her term on the commission had expired more than three years earlier.
But she had stayed on because legislative leaders had not named a replacement. Commission members said neither Harwood nor then-Senate Majority Leader Paul S. Kelly could agree on a replacement.
Right before the interviews, Burgess returned to the commission. She said Speaker Harwood and a staffer for Senate Majority Leader William V. Irons persuaded her to stay through the selection of finalists for chief justice.
"They've known that I wanted a replacement," Burgess said.
Before public comment on the applicants, and the commission's vote on finalists, on Wednesday, a former director of the Women's Resource Center of Rhode Island indicated she would speak against Jeremiah.
At the hearing, several Jeremiah supporters spoke to blunt any effects of adverse testimony.
Family Court Judge Michael B. Forte talked about the "highly emotionally charged atmosphere" in Family Court that leaves most litigants unhappy.
"You will no doubt tonight hear criticism of Judge Jeremiah," Forte said. "Judge Jeremiah encourages constructive criticism."
Forty-five witnesses testified. Of those, 12 spoke for Jeremiah, 7 for Williams, 5 each for Darigan and Flanders, 4 for Lederberg and 2 for Silverstein.
Speaking on behalf of Lederberg, Michael Williams, a former law clerk for the justice, asked commission members to ignore the large turnouts for other candidates.
"The decision of who should be the next chief justice," Williams said, "should not be a matter of politics, should not be a matter of popularity."
Find out more about the candidates for chief justice at::
http://www.projo.com/news/risupreme/
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