An associate justice on the state's highest court is now poised to become its chief justice. Gov. Charlie Baker nominated Justice Kimberly Budd to lead the Supreme Judicial Court on Wednesday. If confirmed by the Governor's Coucil, she would be the first Black woman to hold that position. GBH All Things Considered host Arun Rath discussed the Budd nominiation with GBH legal analyst and Northeastern University law professor Daniel Medwed. This transcript has been edited for clarity.
Arun Rath: Budd has been on the bench for a while. Before that, she worked as a lawyer in both public and private practice. That's about the full extent of my knowledge. Can you give us a quick rundown of her career?
Daniel Medwed: Sure. She's an exceptional candidate for this position. She's a brilliant judge with an impeccable pedigree. She graduated from Georgetown and Harvard Law School. She worked at the U.S. Attorney's office, and at a very prominent law firm in town, as well. She was in the general counsel's office at Harvard University. She's had a broad array of experiences. She's been a judge since 2009, when she was appointed to become a trial judge, and she was appointed by Governor Baker to ascend to the SJC in 2016. So she really checks all of the boxes in terms of her really incredible qualifications.
Rath: She comes from a family of prominent Massachusetts lawyers, right?
Medwed: Absolutely. I should mention, actually, that I know her father. When I was a young baby lawyer and I was just starting out, he was a partner at the law firm, and he was so nice to me, he was so kind to me. Wayne Budd is a legend in Boston legal circles, an incredible lawyer and a former U.S. Attorney as well. So she comes from Boston legal royalty.
Rath: Based on her record, what sort of chief justice might we expect Budd to be?
Medwed: My reaction is, she's incredibly fair, and you can't really pin her down in terms of ideology. I mean, she's not an ideologue at all, she's really committed to fairness. She was appointed by a Republican governor, but a lot of her opinions might strike observers as very progressive and almost to the left.
One opinion in particular I'd love to mention came earlier this year. There was a case involving a criminal defendant, and one of the jurors in that case was blind, and the criminal defendant said that this disadvantaged him — that it was unfair because this juror couldn't see. And in the SJC decision, Justice Budd wrote the opinion, and she said that a fair cross-section of a jury should include people with disabilities, that they are members of the community as well, unless there's a particular reason why sight is critical to evaluating the case. In this case, photographic evidence and things like that really weren't pivotal to the outcome. Budd said that person should be allowed to serve, and it was a real victory for people with disabilities and a real salvo against discrimination.
She also wrote a really interesting opinion the previous year, in 2019, about a drug hair test that was being used by the Boston Police Department that had a disparate impact for false negatives with African Americans. She wrote a really interesting and progressive opinion about that. So I think it's very hard to peg her ideology, but she's incredibly fair.
Rath: It's interesting to hear you say that it's difficult to pin down her ideology, because we've just come through the Amy Coney Barrett confirmation process, where it's been all about ideology. We've heard a lot about schools of thought, theories of legal interpretation — textualism, originalism. In terms of our state's highest court, is any of that stuff at play? Is there ideology playing out in that way in the state court? And if there is, where does Budd fall?
Medwed: It's a really fascinating question. I think it's so refreshing when I think about our state court. I think our Supreme Judicial Court is the best, and maybe I'm biased, but I think it's the best state supreme court in the country. Part of that is, it has a longstanding tradition, going back to Oliver Wendell Holmes and all these legends of the bar, of not just relying on precedent — the letter of the law, sort of faithfully applying precedent going forward — but really reconsidering the vitality and validity of those cases by taking current circumstances into account.
Our court is famous for being the first one in the nation to recognize same-sex marriage. Our court is famous for providing more Fourth Amendment protections to protect individuals from invalid searches and seizures by the police than virtually any other state supreme court in the country. So I don't think talk about originalism and textualism and all of these different tropes of legal analysis apply as much to our court as it does to the U.S. Supreme Court. I think when we talk about the SJC, it's a welcome respite from much of the vitriol surrounding a lot of the conversations that are rightfully earned when it comes to the U.S. Supreme Court.
Rath: I'm going to take some comfort in that.
Medwed: At least I try to do that, too.
Rath: Take it where we can get it. If she is confirmed, as we've noted, Budd would be the first Black woman to be the chief justice of the Supreme Judicial Court. There are obvious ways that people understand how that sort of representation matters when it comes to weighing in on the law, but tell us some things we might not think about, especially in her position of not just being on the court, but potentially being its chief justice.
Medwed: The chief justice in our system plays roles that are both symbolic and substantive. So in terms of symbolism, we can't understate this. She is the face of the court. She is the face of the bar. And the fact that this face is of an African American woman is so wonderful. It sends such an important signal, especially at this incredibly divisive time in our nation's history. So this symbolism is very important.
But substantively, she is the leader, and as the leader, that means she can play a role in developing priorities for the court. The SJC doesn't only hear cases that are assigned to it. It picks and chooses which cases, many cases, that it wants to review. It also plays a supervisory role over the lower courts and over the bar writ large, all of the lawyers who are licensed in the Commonwealth. In that role, she can really play a pivotal role in deciding what we as a legal community should emphasize, what pro bono activities we should put at the top of the list, and what other activities we should put at the top of the list. So in addition, she also has a lot of administrative power within the SJC in terms of assigning tasks and setting up the agenda for meetings and so on. So it is a very powerful job, and one that she deserves more than anyone I could imagine.
Rath: Budd would succeed the SJC's late chief justice Ralph Gants, who died unexpectedly last month. We had you on talking about about Gants, you joined us for a lovely remembrance of him on his program. I'm wondering if you have any idea what you think he might think of Budd's nomination to fill his seat.
Medwed: Gosh, you know, I've been thinking about that all day, actually. For the first time since Ralph died, since Chief Justice Gants died, I really am sort of smiling when I think about the court, because I think that she really is the right person to take his baton, and I think he'd feel comfortable and happy to know that she's taking over for him. She is, by all accounts — in addition to being a brilliant jurist — reputed to be a wonderful human being, just a very good person, just as Ralph Gants was. It warms my heart, and I suspect it would warm his heart as well, to know that she is going to be sitting in his seat.
