Friday February 15, 2013

The Governor’s Council attracts attention (barely) when its members are elected and again when its members mess up. When the latter happens, as in the council’s rejection Wednesday of Pittsfield attorney Michael J. McCarthy to a judgeship in Southern Berkshire District Court, a harsh and unforgiving light is cast on this two century-old anachronism.

As far as can be determined, the five councilors on the eight-member board who voted against Mr. McCarthy didn’t believe he interviewed well with them. Last fall, when Mr. McCarthy was rejected on a tie 3-3 vote, opponents claimed he indicated that he would offer help to inexperienced prosecutors who were struggling during trials. That claim is of dubious merit, but the issue evidently persists.

In favor of Mr. McCarthy, a former Pittsfield city solicitor and assistant district attorney now in private practice, are endorsements offered from Berkshire judges, Berkshire District Attorney David Capeless and area leaders from business and politics. Governor’s Council members are not required to have any legal experience, and the five councilors who voted against Mr. McCarthy apparently know him better than the Berkshire residents who support him even though the closest of the five to the Berkshires lives south of Worcester. The five ‘no’ votes came from Jennie Caissie (Oxford), Eileen Duff (Gloucester), Christopher Ianella (Boston), Terrence Kennedy (Lynnfield), and Marilyn Devaney (Watertown.)

A governor, in this case Deval Patrick, should get his judicial nominees unless there is solid evidence that they are unqualified or corrupt. There is no such evidence in this case, and while the councilors dither, an opening created with the retirement of Judge James B. McElroy must continue to be filled by an acting judge, Fredric D. Rutberg, of the Central Berkshire District Court. Absent any good reason for Mr. McCarthy’s rejection, Councilor Michael Albano tells the Eagle he will urge him to resubmit his application.

In mid-2011, state Senate President Therese Murray, after an earlier Governor’s Council embarrassment involving judicial nominees, offered legislation eliminating the Council, and while the process to do so is lengthy, if the legislation had advanced then the process would be well under way today. As it is, Mr. McCarthy is the apparent victim of what Pittsfield state Representative Tricia Farley-Bouvier accurately calls "the antiquated process of a broken system."