PITTSFIELD -- The region's representative to the Governor's Council is vowing to "never give up" on Michael J. McCarthy as a judicial nominee, despite a 5-3 vote of the full council against the Pittsfield attorney's appointment to a Southern Berkshire District Court position.
Michael Albano, of Longmeadow, representing a district in Western Massachusetts on the eight-member council, and the two other council members who supported McCarthy said Thursday that they would urge him to resubmit his application for a judgeship.
However, a councilor who voted against the nominee, Terrence W. Kennedy, said McCarthy's "poor performance" at two hearings on his nomination led him to vote "no."
"I am not giving up on Michael McCarthy," Albano said Thursday. "I will never give up on Mike McCarthy. He is the right person for this position."
The former Springfield mayor called McCarthy, an attorney practicing in Pittsfield and a former city solicitor and assistant district attorney in the county, "one of the most qualified I've seen in my 40 years in public life" for a District Court post.
Albano cited an unusually strong show of support for McCarthy from the Berkshires, including a Supreme Judicial Court justice, a half-dozen other judges, Berkshire County District Attorney David F. Capeless, and individuals in the business and political spheres and community leaders -- including testimony offered and about 30 letters.
Albano also indicated he will not soon forget McCarthy's rejection. "I don't have control over this, but I do have some control over who [else] gets confirmed," he said.
The South County judgeship became vacant with the retirement of Judge James B. McElroy. Judge Fredric D. Rutberg of the Central Berkshire District Court now is serving as acting judge for the Southern Berkshire court.
What will happen next with the vacancy and when was unclear Thursday. A spokeswoman for Gov. Deval Patrick said no decision has been made on how to proceed.
McCarthy was first nominated to the position by Patrick last year, but failed to win the required council approval in September in a 3-3 tie vote. Lt. Gov. Timothy Murray, who presides at the meetings as an ex officio member, was out of the country at the time and unable to cast a tie-breaking vote in favor of the governor's nominee.
Even though the November state elections resulted in four new council members, those contacted agreed that the nomination initially stalled during the September hearing because of some of McCarthy's answers to questions. One answer cited gave some council members the impression that McCarthy would assist inexperienced prosecutors if they were having problems presenting a case.
Kennedy, of Lynnfield, voted for McCarthy in September but said he did so with hesitation, giving him the benefit of the doubt. He changed his mind Wednesday and voted against the nomination.
McCarthy was asked the same type of questions all nominees are asked, Kennedy said, adding, "We don't ask incredibly difficult questions."
The answer to whether a judge would favor one side in a case should have been an unequivocal "no," he said.
Kennedy added that he liked McCarthy as a person and has no bias against any region of the state, as some supporters of the nominee alleged Wednesday. "I didn't go home happy; I felt bad," Kennedy said. "But I felt we did the right thing."
Robert L. Jubinville of Milton, who with Albano and Oliver P. Cipollini Jr. of Marstons Mills supported McCarthy, said the candidate was "more than qualified" for the post and had overwhelming support from the community.
Jubinville, a former state trooper and detective who is now an attorney, said he makes that assessment having been in courtrooms around the state.
"I argued that what [the council was] saying was that all those people are wrong and we're right," Jubinville said.
Cipollini said it seemed two separate coalitions somehow formed on the council and were "going to go their separate ways." But because of his experience, support from the criminal justice community and others, Cipollini said he would recommend that McCarthy try again for a judgeship.
Albano and others have depicted the negative vote as political in nature but with motives that remain unclear. "I don't know how anybody could vote against this recommendation," he said. "It smacks of Boston politics."
The rejection "was an egregious violation of the people of Berkshire County," he said. "I think Judge [Robert] Bork was treated better."
The conservative judge was nominated for the U.S. Supreme Court in 1987 but rejected by the Senate after a tumultuous national debate.
Council members Christopher A. Iannella of Boston, Marilyn P. Devaney of Watertown, Jennie Caissie of Oxford, and Eileen R. Duff of Gloucester voted with Kennedy against McCarthy. The other members could not be reached Thursday for comment.
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