BOSTON — Appeals Court Judge Barbara Lenk won confirmation to the Supreme Judicial Court yesterday, securing the support of five members of the Governor's Council to become the first openly gay member of the state's highest court.
Lenk, 60, could serve for 10 years on the SJC before reaching the mandatory retirement age. Councilors Charles Cipollini, Mary-Ellen Manning of Salem and Jennie Caissie each described different reasons for voting against Lenk.
Lenk will become the fourth judge placed on the high court by Gov. Deval Patrick, continuing a trend of precedent-setting appointees. In December, Patrick swore in Roderick Ireland as the SJC's first African-American chief. In February, he swore in Fernande Duffly, the court's first Asian-American.
"I thank the members of the council who concluded, as I did, that Justice Lenk's sharp intellect, vast experience and deep sense of humanity will make her an outstanding associate justice of the Supreme Judicial Court," Patrick said in a statement after the vote. "The people of the commonwealth will be well-served by having her extraordinary talents and wisdom join our highest court."
Attorney General Martha Coakley, also in a statement released after the vote, congratulated Lenk. "The breadth of her experience and her record of fairness as a Superior and Appeals Court judge made her a highly-qualified nominee, and I believe she will serve the commonwealth with distinction as our next justice," Coakley said.
Councilor Marilyn Devaney, in supporting Lenk, called the judge "most brilliant."
"In researching Judge Lenk, I found that she had a legal record without bias, no challenge to her conduct. She does not legislate and has the highest ethics," said Devaney, who read a lengthy statement to explain her vote and why she felt she had been taken out of context in the media after raising questions about a same-sex incest ruling.
Devaney said she met twice with Lenk, and her concerns were put to rest regarding that case, as well as a potential conflict of interest when her spouse appeared with clients before the Appeals Court. "Of course I know Judge Lenk was not in favor of incest, but it was important to have her opinion," Devaney said.
Devaney and Councilors Kelly Timilty, Christopher Iannella, Terrence Kennedy and Thomas Merrigan all backed her nomination.
Manning, in a written statement, explained her reasoning for voting against Lenk, including the judge's reluctance to take a position on the constitutionality of current Massachusetts laws and the constitutional limits to a person's right to privacy and whether that extends to their right to die.
"I am left to conclude that she is a Trojan Horse who will reveal her legal mind inside the walls of the Supreme Judicial Court far from the public's grasp," wrote Manning, who represents the North Shore.
Manning also faulted Lenk for "refusing" to answer a councilor's written question about how many cases she had decided where important issues regarding the gay community were addressed. Manning said Lenk claimed such data was not collected but Manning said her own research showed Lenk had sat on a disproportionate number of such cases, compared to other appellate judges, and Manning is convinced such cases were "steered" to Lenk.
Caissie commended Lenk for her professionalism in the face of "irrelevant" and "ignorant" questions directed toward the nominee during her confirmation hearing but said she was also troubled by Lenk's responses to questions about the Second Amendment and the rights of Massachusetts residents to bear arms.
Caissie also noted her concerns that Lenk believes judges should "develop" the law.
Lenk has been on the bench since 1993, when Gov. William Weld named her to the Superior Court. In 1995, Weld elevated Lenk to the Appeals Court. Prior to her appointment as a judge, Lenk spent 14 years as an associate and partner at Brown, Rudnick, Freed & Gesmer. A graduate of Harvard Law School with a Ph.D. in political philosophy from Yale University, she will take the slot held by Justice Judith Cowin, who retired from the SJC this month.
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