Scott MacKay Commentary
8:31 am
Mon May 27, 2013

Despite Reforms, Connections Can Still Lead to Judgeships

After the Rhode Island court scandals of the 1990’s, the state changed the way judges are chosen. Rhode Island Public Radio political analyst Scott MacKay explains why lawyers with Statehouse connections keep getting appointed to the bench … despite the reforms.

Lobbyists on Smith Hill continue to have power in the appointment of new judges.
Lobbyists on Smith Hill continue to have power in the appointment of new judges.
Credit Don Boorman / RIPR

Common Cause of Rhode Island, the good government group, the Rhode Island Bar Association and a past president of the NAACP skewered Gov. Lincoln Chafee recently when he elevated former Senate President Joe Montalbano to a coveted judgeship on the state superior court bench.

The protests were less about Montalbano’s qualifications and more about the way that successive governors and Smith Hill politicians have made a mockery of Rhode Island’s judicial merit selection system put into effect in 1994.

After a run of chicanery in our courts, including the resignations in disgrace of two Supreme Court chief justices - Joseph Bevilacqua and Thomas Fay – Rhode Island voters approved a Constitutional Amendment designed to take some of partisan politics out of picking judges.

The reforms were approved by about 70 percent of voters, signaling that Rhode Islanders clearly wanted change. This overhaul put in place a Judicial Nominating Commission to screen lawyers who applied for judgeships. Before that, legislative leaders and the governor named whoever they wanted to the bench.

Over the years, the Statehouse crowd, both governors and General Assembly poobahs have whittled away at the merit selection system.

They have carved out the magistrate dodge, scoffed at the time limits on judgeship appointments and wedged capitol lobbyists into the judicial selection panel. This has turned the courts into an insider Lollapalozza of cronyism.

Governors are supposed to appoint a judge from a list of lawyers vetted by the nominating board within 21 days. As has been the case with other governors, Chafee stalled, blowing off the deadline until Senate President Teresa Paiva Weed gave his gay marriage legislation a fair hearing.

Paiva Weed voted against same gender marriage, but she allowed the measure to come to the floor.

After the gay marriage victory, Chafee moved Montalbano’s nomination to Superior Court. Chafee’s spokeswoman insists there was no quid pro quo with Paiva Weed.

Yet anybody who understands politics knows there is no need for such an agreement; everybody in our cozy, incestuous Statehouse whirlpool knows what the other side wants.

A weak governorship is a relic of Rhode Island’s colonial past, when strong central was feared and power was vested in the legislature. So governors forever have used judgeships to gain concessions from lawmakers.

Then there are the magistrates, who wear robes and have many of the powers of regular judges, except that they don’t preside at trials. Magistrates are exempt from the judicial selection parsing, meaning they are chosen by the chief judge of the respective Traffic, District, Family, Workers’ Compensation and Superior courts.

Now the magistrate positions have become the back-door to judgeships. When merit selection became law in 1994, there were five magistrates in the entire state court system. Now there are 20. A coincidence?

Magistrates in recent years have included the wife of a former House Speaker, the sister of a senator and a slew of former lawmakers and political cronies.

There is nothing inherently wrong with lawyers who have been politicians ascending to the bench. It is a good thing to have an intellectual lawyer such as William Robinson serving on the Supreme Court with Frank Flaherty, the former Warwick mayor who was almost elected governor in 1992.

Then there are the lobbyists who have served on the Judicial Nominating Commission. These are smart people who care about our state. But what do you expect them to when faced with a judge candidate favored by Assembly leaders? It is awfully hard to vote against the Senate president’s candidate for the bench when the next day the Senate is voting on a client’s bill.

The result is bench that reflects more the web of Smith Hill connections that 21st century Rhode Island. Civil Rights Activist Cliff Monteiro noted recently that no judges of color sit on the Family, Workers Comp, Traffic or Supreme courts.

This insider Lollapalozza keeps qualified lawyers from even applying to be judges, says Michael Yelnosky, Roger Williams University law professor. When a lawyer applies to be a judge, his or her name becomes public, signaling to clients that he or she no longer wants to represent them. Why, asks Yelnosky, would a successful lawyer want to submit to public scrutiny knowing the system is rigged for a State House crony?

Isn’t it about time to plug the lobbyist loophole, shut the magistrate back door, and bring some fresh blood into the Rhode Island judiciary, which is supposed to be a separate and equal branch of government, not a subsidiary of the Statehouse.

Scott MacKay’s commentary can be heard every Monday morning at 6:35 and 8:35 on Morning Edition and again at 5:45 on All Things Considered. You can also follow his political reporting at the “On Politics” blog at RIPR.org.