State Supreme Court Justice Margot Botsford ruled correctly in regretfully dismissing local Attorney Michael J. McCarthy's lawsuit against Governor Deval Patrick and Secretary of State William Galvin stemming from his rejection for a Southern Berkshire District Court judgeship by the Governor's Council. However, the judge's assertion that the case was "unfortunate" and there was nothing to indicate that Mr. McCarthy was unqualified for the judgeship is correct as well.
Mr. McCarthy failed to win confirmation on a 3-3 in vote September of 2012, evidently because those casting "no" votes either misunderstood or mischaracterized some comments by Mr. McCarthy in a hearing. Councilor Mary Ellen Manning, who unaccountably abstained, requested a month later that her vote be changed to in favor of confirmation. The governor concluded that this would set "a dangerous precedent" and renominated Mr. McCarthy, but a new council rejected him by a 5-3 vote last February.
The governor was right. Allowing board members to change votes after the fact would set a precedent in which members of state or even local boards could switch votes months later, creating chaos by making all votes and their ramifications uncertain from the day they were cast. Unfortunately, the damage has been done and can't be undone. What can be done is to begin the lengthy process of eliminating the Governor's Council, a Colonial era anachronism that as has been seen can do real harm to the state's judicial process.