Healey’s high court pick sends message that outsiders need not apply

Surely a smart politician like Governor Maura Healey knows that optics count. And surely she also had to know that the optics around nominating her former longtime partner to the state’s highest court are just dreadful — the obvious qualifications of Appeals Court Judge Gabrielle Wolohojian notwithstanding.

The nomination puts an unnecessary spotlight on Wolohojian — and will continue to do so as she navigates the often tricky legal waters should she, as expected, win confirmation to the Supreme Judicial Court from the Governor’s Council, the eight-member elected body charged by the state constitution with approving all judicial appointments.

If she’s confirmed, Wolohojian will then have to figure out if and when to recuse herself from cases involving Healey and her administration. The court’s rules call for judges to step aside from a case if a judge has a “personal bias or prejudice concerning a party.” None of us need to know the circumstances of Healey and Wolohojian’s breakup, but it beggars belief to imagine that the judge has no “personal bias,” positively or negatively, toward her ex — who is arguably a party in all manner of lawsuits involving state government.

As the Code of Judicial Conduct states, judges “shall avoid impropriety and the appearance of impropriety.” So here too optics count.

But if the nomination creates potential headaches for Wolohojian, even more so it puts the spotlight on Healey and a pattern of appointments that suggests she has a narrow vision of what makes a court great and what makes a nominee a superstar.

“There is no one more qualified. I am very comfortable in saying that,” Healey told reporters last week after announcing her nomination of Wolohojian. “If you look at her record and you look at her career, as a lawyer and then as a judge these past 16 years on the Appeals Court, there’s no one more qualified or more prepared.”

Healey was fortunate to get not one but two unanticipated nominations to the SJC — unanticipated because neither departing justice, Elspeth Cypher and David Lowy, had reached the mandatory retirement age of 70. She could have used these nominations to make some truly outsidethe-box choices, to think about the direction of the court and the difficult choices it will have to make in the years ahead over issues that perhaps a decade ago were virtually unknown. In the way that Margaret Marshall, who served on the SJC for 14 years, 11 of those years as chief justice, did, including writing the decision that opened the way for Massachusetts to become the first state in the nation to legalize gay marriage.

Marshall was vice president and general counsel at Harvard University at the time of her appointment.

The brilliant former US Solicitor Charles Fried served on the SJC for four years, returning in 1999 to the teaching post he left at Harvard Law School to join the court.

By all accounts, Wolohojian’s experience and character are beyond reproach. But Healey’s judgment is not. Was there truly “no one” more qualified? Or was the search too narrow — and the nomination made too rapidly?

Was there, for example, no one from the western part of the state? There used to be a tradition on the court of reserving at least one seat for a justice from “out west,” but that seems to have ended after the 2008 retirement of Justice John Greaney.

“You know, I don’t want the fact that [Wolohojian] had a personal relationship with me to deprive the Commonwealth of a person who’s most qualified for the position,” Healey said at that same impromptu news conference.

But that would ring truer if it weren’t for the fact that Wolohojian is the second

If the nomination creates potential headaches for Wolohojian, even more so it puts the spotlight on Healey and her narrow vision of what makes a court great and what makes a nominee a superstar.

high court nominee to come from Healey’s own inner circle. In December she nominated state Solicitor Bessie Dewar to the SJC. Again, Dewar is eminently well qualified for the job, but it was Healey who as attorney general had named Dewar solicitor in 2016.

Dewar also faces potential areas for conflicts as cases she may have handled earlier bubble up to the SJC.

There is no question that Wolohojian is qualified for the job. But that’s not the only factor that officials must consider. It would behoove members of the Governor’s Council, which is scheduled to hold a hearing on Wolohojian’s appointment on Feb. 21, to inquire of the nominee how she handled potential conflicts during her years on the Appeals Court that included the time Healey was attorney general and the two were a couple. And if confirmed, how will she interpret the court’s requirement to avoid ruling on cases where her “impartiality might reasonably be questioned”?

Governors get the judiciary they want. It is not unknown — and not at all improper — for the governor’s chief legal counsel to try to recruit qualified nominees, especially in an attempt to get a more diverse bench.

In fact, part of the mandate of the special five-member Supreme Judicial Court Nominating Commission Healey set up in September was to seek judicial candidates from “a cross-section of our community, representing not only geographically diverse parts of the Commonwealth, but also our citizen’s diversity of race, ethnicity, gender, gender identity, sexual orientation, ability, and economic status.”

And, yes, candidates must apply for the position — and fill out a lengthy application. A spokesperson for the governor said “nearly two dozen candidates from across the state” were considered for the two vacancies.

But the unfortunate message this latest nomination sends is that this isn’t the kind of open process the nominating commission idea was intended to create, the wide net that should be cast for such positions.

In fact 2 of the 5 members of the commission for the SJC appointments were the governor’s chief of staff and chief legal counsel — an insider arrangement that from the start says “outsiders need not apply.”

Healey could have made a bold choice. She didn’t. She picked a person she knows well and in doing so did that nominee and the high court a disservice.