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Dacier’s Take. . . On Federal Judicial Nominations for Massachusetts

Late last month, we received some welcome news from the White House. President Obama nominated three lawyers for federal judgeships in Massachusetts: David Jeremiah Barron to the First U.S. Circuit Court of Appeals, Mark G. Mastroianni to the U.S. District Court in Springfield, and Indira Talwani to the U.S. District Court in Boston.

Senator Elizabeth Warren has described the two U.S. District Court nominees as “talented and respected practitioners with diverse professional backgrounds, strong ties to the community, and impressive legal careers.” Similarly she’s noted that the nominee for the First Circuit “is a highly respected law professor and former government official with a strong commitment to public service.”

As you may know, the Boston Bar Association does not rate candidates for the federal judiciary, a role traditionally left to the American Bar Association. As our federal judges serve for life, we do take very seriously Article III, Section 2 of the United States Constitution, which requires that nominees for  judicial posts be vetted by the United States Senate.

Nobody benefits from having three unfilled judicial positions at a time when there is work to be done. Even the most cursory reading of news accounts over the past year suggests that the federal courts in Massachusetts have been extremely busy with both high profile criminal cases and extremely complex civil cases. There are some additional high profile criminal trials that will be coming soon, putting further strain on the District of Massachusetts. This will have an impact on all litigants.

In Springfield, for example, the position has been vacant since Judge Michael Ponsor’s taking senior status in August 2011, in the process placing an undue burden on the U.S. District Judges in Boston. The District Court vacancies in Boston came about when Judges Mark Wolf and Joseph Tauro assumed senior status in January and September of this year. The First Circuit Court of Appeals vacancy occurred when Judge Michael Boudin assumed Senior Status last June.

As an independent, co-equal branch of government, our federal judiciary plays too important a role in our lives to be politicized. It is in that spirit that, we urge the Senate Judiciary Committee to exercise all due haste in scheduling hearings for each nominee, and then proceed to vote each nominee up or down. In the event that a nominee is voted up, we would urge that the nominee be voted up or down by the full Senate. All we ask is that the nominees be judged on their qualifications, including the ability to be fair and free from bias, not on any political considerations.

Dacier’s Take on. . .Ted Olson’s BBA Keynote Address

Dacier's Take on. . .Ted Olson’s BBA Keynote Address

Earlier this week the iconic appellate advocate Ted Olson was back in the news, advocating for marriage equality. Having worked with David Boies to overturn California’s ban on same-sex marriage, he and Boies are now focusing their attention on Virginia. Their goal is to persuade the Supreme Court of the United States that the United States Constitution provides gays and lesbians with the right to marry the partner of their choosing. As you may know, the Boston Bar Association (BBA) is proud to have worked on this issue for more than a decade.

For-Dacier-BlogAt the BBA, we’re still feeling the exhilaration of hearing Ted talk to some 1,400 lawyers and judges at our Annual Meeting Luncheon last Friday. Here are just a few things many of us find so admirable about the former Solicitor General who has argued 60 cases before the Supreme Court and prevailed in 75 per cent of these arguments:

  • Despite having argued against David Boies in Bush v. Gore, he welcomed Boies as his co-counsel in this series of marriage equality cases.  This tells us he cares deeply about the Constitution as a living document whose importance takes precedence over partisan issues. What a great lesson for all of us in a country that could benefit from dialing down the divisive dialogue.
  • A model of civility, he doesn’t let his personal political allegiances get in the way of being an effective advocate for larger issues. As he told us on Friday, he figured that if people could see “two old white, straight guys” from different sides of the political aisle coming together to argue for marriage equality, this would help them win in the court of public opinion.
  • Ted Olson has extraordinary respect for the Supreme Court as an institution and deep respect for its nine justices, because our third branch of government answers the tough questions perhaps too hot to handle for the executive or legislative branches.

A veritable encyclopedia of information about the Supreme Court, Olson began by reminding us that the court’s first chief justice, John Jay, served just seven years, declining re-appointment, echoing Alexander Hamilton’s comment in Federalist No. 78 that “the Judiciary branch of the proposed government would be the weakest of the three because it had “no influence over either the sword or the purse,. . . It may truly be said to have neither FORCE nor WILL, but merely judgment.”

He went on to say that the next chief justice, John Marshall, cemented the court’s authority as being the final arbiter of what the Constitution means in Marbury v. Madison. As for the importance of the court today, Olson observed that “there is virtually no issue affecting our lives that the Supreme Court has not touched.”

Among Olson’s observations on the Roberts Court. . .

  • The concept of diversity on the Supreme Court is far more complex than meets the eye. While the court now has 3 women, 1 African American, and 3 Jews, all of them have gone to the handful of Ivy League colleges or law schools from which their white male counterparts graduated.
  • The confirmation process, once unanimous, has become overtly political – with every confirmed justice receiving negative votes not based on qualifications. “This change is permanent and not for the better,” he observed.
  • During John Marshall’s tenure the court spoke with one voice; Chief Justice Roberts has realized that’s not going to happen.
  • Cases involving new technologies will continue to be prevalent in the term that started this week.

Many of us came away nodding our heads in agreement at his conclusion that the Supreme Court is a model for the functioning of any government institution, because the cases are argued in open court, and then decided in writing before a year’s time. The crowd’s enthusiasm for Ted Olson’s remarks was palpable, as was his respect for the role of the Boston Bar Association as a non-partisan organization.