Rare R.I. Supreme Court vacancy raises questions of race, power
By Edward Fitzpatrick Globe Staff
July 2, 2020
PROVIDENCE — While the candidates won’t be on the ballot, one of the year’s more consequential and intriguing contests in Rhode Island is now under way.
Last week, the state Judicial Nominating Commission decided to interview nine applicants for one of the more rarely available and highly desirable Rhode Island government positions — a lifetime appointment to the five-member state Supreme Court.
The decision is consequential because the Supreme Court, which holds the final word on matters of state law, has not experienced any turnover in a decade — the longest stretch without a vacancy on any state supreme court.
And the decision is intriguing because two of the leading candidates are a state trial court judge, who would become the first person of color to ever sit on the state’s high court, and a powerful state senator, who is free to jump directly from the legislature to the court now that the Ethics Commission has overridden a staff opinion on the state’s “revolving door” ban.
Rhode Island does not elect judges, as many states do. So these candidates must appeal first to the Judicial Nominating Commission, which will pick three to five finalists. They then must try to win over Governor Gina M. Raimondo, who will select her nominee from that list. And finally, the nominee must win confirmation from both the Senate and the House.
With those audiences in mind, advocates are already making the case for their candidates.
For example, Senate President Dominick J. Ruggerio has publicly backed Senate Judiciary Chairwoman Erin Lynch Prata’s bid for the high court, saying, “Our state would be fortunate to have a jurist of such exceptional ability and character.”
And Black leaders, such as Senator Harold M. Metts, have called for Raimondo to appoint a person of color to the Supreme Court — helping to make the case for Superior Court Judge Melissa A. Long, who is biracial.
But lobbying for the $189,424-a-year job will only grow more intense as the process unfolds in the months ahead.
Some of the advocacy will be plainly visible. The Judicial Nominating Commission will interview candidates in public, and two supporters of each candidate will speak at public hearings. Some of it will be less evident, as letters of reference and phone calls will come in from lawyers, judges, business owners, and clergy members extolling the virtues of the candidates.
“Without a vacancy for a decade, there is pent-up ambition,” Common Cause Rhode Island executive director John M. Marion said. “Combine that with a high-profile campaign by Senate leadership for one of their own, plus the prospect of the first person of color in history on the high court, and we are going to see unprecedented public pressure for this vacancy.”
While the outcome would be closely watched at any time, it is attracting added attention amid a national reckoning over race following George Floyd’s death in police custody in Minneapolis on May 25.
Rhode Island is one of 12 states that has never had a person of color on its highest court, and three of those states — Rhode Island, New Hampshire, and Maine — now have vacancies on their top courts, according to the Brennan Center for Justice.
Since its creation in 1994, the Judicial Nominating Commission has submitted the names of 28 finalists for Supreme Court vacancies, and just one has been a person of color: O. Rogeriee Thompson, who is Black, made three separate lists of finalists, but she was not chosen and went on to become a judge on the Boston-based 1st U.S. Circuit Court of Appeals.
Metts noted that in 2003 former Governor Donald Carcieri missed a chance to appoint Thompson, the great-granddaughter of a slave, to the Supreme Court, and Carcieri was quoted at the time as saying, “I’m not interested necessarily in making history.”
“That was a slap in face to the African-American community and people of color,” Metts said, adding that it’s past time for Rhode Island to make history. “Better late than never,” he said.
While state supreme courts receive far less attention as the U.S. Supreme Court, they wield enormous power, setting precedents for some 23,000 lower state court judges. And people of color and women are “dramatically underrepresented” on state supreme courts, the Brennan Center said in a 2019 report on high court diversity.
Douglas Keith, counsel in the Brennan Center’s Democracy Program, said it’s crucial for those courts to reflect the communities they serve both to promote public confidence in the judicial system and to improve judicial decision-making by bringing to bear a variety of perspectives.
“For 250 years in Rhode Island, the Supreme Court has shaped the law in the state with the perspective of exclusively white judges,” Keith said. “So how is that possibly fair? How does that possibly inspire confidence from the 30 percent of Rhode Islanders who don’t identify as white?”
Michael J. Yelnosky, outgoing dean of the Roger Williams University School of Law, said he views the historic lack of diversity on Rhode Island’s high court as a matter of racial justice.
“For a state supreme court in 2020 to have never had a justice of color on it raises questions about the legitimacy of the judicial selection process,” Yelnosky said. “At some point, it has to change, and it doesn’t change by accident. It changes because people decide it’s important.”
Those arguments would seem to set the stage for the appointment of Long, a former deputy secretary of state that Raimondo appointed to the state Superior Court in 2017, making her the only Black woman on the Rhode Island bench.
But the stage has also been set for the appointment of Lynch Prata, a Warwick Democrat who chairs the powerful Senate Judiciary Committee.
Lynch Prata has served in the Senate for 12 years, and she played in pivotal role in enacting the bill, signed into law by Raimondo last year, that preserves abortion rights in Rhode Island in case the U.S. Supreme Court overturns Roe v. Wade.
In April, Lynch Prata announced that she is not seeking re-election in the fall. Instead, she requested an advisory opinion from the Ethics Commission about whether a “revolving door” provision in the code of ethics prohibits her from applying for the high court for one year after leaving the legislature.
Ruggerio issued a statement saying he has been fortunate to have Lynch Prata as part of his leadership team, handling “some of the most daunting challenges our chamber has ever faced.” He said, “I know she would make a similarly invaluable contribution on the bench.”
In a written draft opinion, the Ethics Commission staff said the “revolving door” provision would prohibit Lynch Prata from seeking that position for a full year. But Lynch Prata argued that a Supreme Court position is a constitutional office, like that of the governor or treasurer, that’s exempt from the revolving door prohibition.
And on June 2, the commission voted 5-2 to reject the staff opinion, clearing the way for Lynch Prata to pursue the Supreme Court seat that Justice Gilbert V. Indeglia vacated on June 30.
Marion said Common Cause was “sickened” by that Ethics Commission decision. He noted the watchdog group pushed for both the “revolving door” provision and for the “merit-selection” process of choosing judges in response to court scandals in the 1980s and 1990s.
Adopted by voters in 1994, the merit selection process ended a centuries-old system of having the General Assembly elect Supreme Court justices, creating the Judicial Nominating Commission to vet applicants and submit lists of finalists to the governor.
“It was created to reduce the ‘I know a guy’ process for selecting justices and to bring transparency to the process,” Marion said.
Even with merit selection in place, judgeships are still seen as political bargaining chips. “No one will say it out loud, but unfortunately it has long been assumed that House leaders, Senate leaders, and the governor take turns at making the final pick for judges,” Marion said.
Senator James C. Sheehan, a North Kingstown Democrat, praised Lynch Prata’s qualifications and qualities. But in a letter to legislators, he said, “If the revolving door law is reopened for business, seats on the Supreme Court will become objects of robust political desire and backroom deals by Smith Hill insiders.”
Sheehan said Rhode Island has never had a person of color on the high court in part because they haven’t had the ear of those wielding power. In other words, he said, they didn’t “know a guy that will get them the nod.” He said that if she gets the chance, Raimondo should appoint a justice of color.
Marion said one goal of the merit selection process is to create a more diverse bench.
Under Chairwoman Sarah T. “Sally” Dowling, the Judicial Nominating Commission deserves credit for recruiting people of color to apply for judicial vacancies, Marion said, citing required annual diversity reports. Raimondo deserves credit for making appointments that have added diversity to state courts, he said.
“And we think this is an historic opportunity for her to continue that effort,” he said.
While attention is focused on Long and Lynch Prata, they face competition from seven other applicants.
The Judicial Nominating Commission plans to interview three other judges: Superior Court Judge Joseph A. Montalbano, a former state Senate president; Superior Court Judge Kristin E. Rogers, daughter of the late Superior Court Presiding Justice Joseph F. Rodgers Jr.; and Family Court Judge Laureen D’Ambra, a former state child advocate.
And the panel plans to interview former Providence City Councilman Samuel Zurier; Assistant Attorney General Jeanine McConaghy; Department of Business Regulation Associate Director Pamela Toro; and John E. Roberts, a partner in the Proskauer Rose law firm.
Girard R. Visconti, a former Judicial Nominating Commission chairman, said “seasoned lawyers” can ably fill the role of a Supreme Court justice, but he sees value in prior judicial experience. “It’s like a business where if you have a vice president and there’s an opening for CEO, why not elevate someone with all that experience?” he said.
While the Supreme Court has not seen turnover in a decade, the next vacancy might come much sooner.
At age 69, Justice Maureen McKenna Goldberg is the youngest member of the high court, while Justice William P. Robinson III is the oldest at age 80.
Rhode Island, Massachusetts, and New Hampshire are the only states where supreme court justices receive lifetime appointments, according to the Institute for the Advancement of the American Legal System. And Rhode Island is the only state where high court justices get lifetime appointments but there is no mandatory retirement age. For Massachusetts judges, the mandatory retirement age is 70.
Looking ahead to the next generation, Metts said he is encouraging Black lawyers to apply for state judgeships. Some feel frustrated and consider it “an exercise in futility,” he said.
But Metts, a church deacon, said, “I go Old Testament on them, and say: Moses didn’t make it to the Promised Land, but because of his efforts a lot of people did.”