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The Romney Files

Romney’s Record on Judicial and Legal Appointments

Can he be trusted as President to appoint conservatives to the Courts and Justice Department?

by Amy Contrada

December 9, 2011

Contents (below):

Governor Romney does not have a conservative judicial record

In National Review’s latest round of cheerleading for Mitt Romney, columnist Ramesh Ponnuru revealed his high expectations for Romney’s judicial appointments if he becomes President:

A President Romney’s judicial nominees would be superior to President Obama’s simply because he would not be trying to stack the bench with liberal activists. But they are likely to far exceed that low bar. Each Republican president since the Nixon-Ford era has nominated a higher percentage of conservatives as justices to the Supreme Court than his predecessor. That’s mostly a testament to the growth and development of the conservative legal network. Romney is likely to look for nominees whom conservative lawyers like — Robert Bork is a top adviser — who are professionally accomplished, and who cannot be portrayed as extreme. If Republicans hold the Senate they will almost certainly be confirmed. If they do not, they will probably be confirmed. [1]

Are Ponnuru’s hopes well grounded? An examination of Romney’s record as Governor of Massachusetts (Jan. 2003-Jan. 2007) might lead one to very different expectations, or at least plant serious doubts. The Boston Globe reported in July 2005:

Romney, who is considering a run for the Republican nomination for president in 2008, has cast himself to GOP audiences as a lonely Republican voice in an overwhelmingly Democratic state. But his judicial appointments led one out-of-state activist to suggest the choices might hurt Romney among Republican voters. Observers in the Bay State legal community, meanwhile, said they see a contradiction between Romney's judicial choices and his conservative rhetoric, including his stated opposition to same-sex marriage. [2]

Most of Governor Romney’s judicial appointees were not conservative. The Boston Globe’s July 2005 “review … of Romney's judicial picks detected no philosophical or partisan pattern.” He “passed over GOP lawyers for three-quarters of the 36 judicial vacancies he has faced [as of July 2005], instead tapping registered Democrats or independents including two gay lawyers who have supported expanded same-sex rights.” [3]

Early in his term, Governor Romney made much of his “first in the nation ‘blind’ judicial merit selection process.” The claim was that it served the “ambitious goal of removing politics from the judicial selection process.” He was the first Governor of Massachusetts to require his judges to be members of the bar. [4] To what extent that requirement limited the appointment of conservatives can be debated.

In Massachusetts, the Republican appointments might well be liberals. And it’s hard to find a Democrat in in the state who’s not pro-“gay marriage” and pro-abortion. Steve Baldwin writes,

Given the fact the Democrat party in Massachusetts is extremely pro-abortion, we can assume that most of the Democrats Romney nominated to the bench were pro-abortion. Many of the appointments occurred after Romney’s [pro-life] conversion… Just two months after his epiphany, he nominated liberal pro-abortion Democrat Matthew Nestor to a lifetime seat on the Somerville District court…. When Romney met with NARAL leaders in 2002, he promised them his judicial picks would be MORE likely to protect abortion rights than those of a Democrat Governor! He kept his promise – even after his [pro-life] conversion. [5]

Romney left an unprecedented number of judicial vacancies unfilled

In a shocking lapse, Governor Romney failed to fill ten judicial vacancies before his term ended, leaving them to be filled by his liberal Democrat successor, Deval Patrick. The Boston Globe reported in November 2006 on Romney’s surprising promise not to fill at least 12 empty judgeships or clerk magistrate positions in the waning days of his term, described by his own spokesman as “fairly unprecedented.” (The final tally of vacancies is muddied by a report several weeks later that Romney nominated four more judges, despite his promise of no lame-duck appointments.) [6]

“It’s really unusual,” said Christopher Iannella, a governor’s councilor who has served during the Dukakis, Weld, Cellucci, Swift, and Romney administrations. “Generally speaking, the governor fills just about every position there is to fill. A lot of these positions have been hanging around for a while and should have been filled before now. On the other hand, he’s giving the new governor an opportunity.” . . .

David Yas, editor of Lawyers Weekly, said Romney is “bucking tradition” by resisting the urge to fill all remaining judgeships.

“It is a tradition for governors to use that power to appoint judges aggressively in the waning moments of their administration,” Yas said.

He added that Romney has been criticized for failing to make judicial appointments. “The legal community has consistently criticized him for not filling open seats quickly enough and being a little too painstaking in the process and being dismissive of the input of the Judicial Nominating Commission,” Yaz [sic] said. [7]

Governor Romney had set up a new state commission to streamline the judicial selection process and ensure fairness. But even with all the help from the commission, his attention to these crucial appointments lagged in his final year in office. Why was there no follow-through? Because his attention was elsewhere in 2006. He was busy setting up his national Republican PAC and preparing for his Presidential run. He was out of the state 212 days that year. [8]

Romney’s radical judge appointees

Conservatives may legitimately question Romney’s pro-abortion and sexual-radical appointees: the judges, high-level staffers, and  policy makers whose goal is to undermine traditional social values and radically transform society. Homosexual and transgender activists played major roles in Governor Romney’s campaign, transition team, and Departments of Public Health, Social Services, and Education. They pushed their policies and propaganda into state agencies, medical offices, and public schools at every level. [9]

The Boston GLBT newspaper Bay Windows happily catalogued Romney’s “gay” appointees, knowing that they would use their offices to promote their causes. Their “sexual orientation” was not just a private matter, as Romney would have us believe, but carried a political agenda. The lead attorney for “gay marriage” in Massachusetts explained, “As feminists in the 1970s rightly noted, and other civil rights and social justice movements found out, the personal is political, or at least it can become so.” [10] Yet as Governor, Romney chose to ignore this obvious fact.

Romney appointed at least two homosexual activist judges, and even bragged about it:

I’ve appointed approximately 60 judges, one or two of whom... one of whom I’m quite confident is gay, the other may be gay as well. I think he probably is, and there may be more for all I know. But I’ve never asked a judicial candidate, “are you gay?” and discriminated against them on that basis. Nor, if I look in their resume and there’s an indication of their being gay, I don’t then delve into it and say, “Gee, are you gay yourself, or are you in support of gay issues?” I believe that in America, we should not discriminate against people on the basis of our differences. [11]

A pro-Romney web site (AboutMittRomney.com, “Gay Judges”) [12] proudly notes his outreach to pro-gay-rights legal groups. The Governor encouraged their members to apply for judicial openings. Supposedly, the chairman of Romney’s judicial nominating committee could be counted on to be conservative as a member of the Federalist Society. However, he was complicit in this alliance with feminist and sexual-radical attorneys:

Romney’s appointee to the chairmanship of the Judicial Nominating Commission, Boston lawyer Christopher D. Moore, has reached out to minority and women’s bar associations to encourage members to apply. He’s done the same with the state lesbian and gay bar association, which also has a seat on Romney’s joint bar committee... [13] [Emphasis added.]

The inclusion of these bar associations certainly satisfied the Governor’s new requirement that all nominees had to be members of the bar. But it gives the lie to his claim that his new selection process would be free of politics. What are radical feminism and gay rights advocacy about, if not politics?

The Women’s Bar Association included many radical feminist members, revealing its stripes in 2000 when it honored GLAD (Gay & Lesbian Advocates & Defenders) lesbian activist attorney Mary Bonauto, who would argue the Goodridge “gay marriage” case before the courts .[14] And certainly many of the Women’s Bar members were promoters of the long-standing pro-woman gender bias in the family courts regarding divorce, child custody, and restraining orders. [15] Was Governor Romney ready to listen to the other side? The Fatherhood Coalition cofounder, Mark Charalambous, said in February 2003:

While we are hopeful that in the long run Mitt will turn out to be a good Governor for the Commonwealth as a whole with respect to the state's financial and economic woes, the state's non-custodial fathers in Massachusetts have no reason to be optimistic. Mitt has not responded to any of our overtures for a dialogue, neither during the campaign nor since taking office.

He is apparently continuing the pattern of his Republican predecessors in viewing fathers’ rights as some kind of subset of women’s issues. We have been told that he is putting our issues in Lieutenant Governor Kerry Healey's domain – which is bad news for us since Healey is a victim/feminism partisan who claims some kind of authority/expertise in domestic violence. This is bad news not just for non-custodial fathers, but for all males.

Romney's refusal to respond to our overtures indicates to me that he intends to follow in Weld and Cellucci's footsteps. He has so far ignored our concerns about the anti-father bias in the courts and the domestic violence, child abuse, and child support regimes that are crucifying fathers in the name of protecting women and providing for children. He has instead gone so far as to appoint Judith Beals, the discredited former spokesman for Jane Doe [ultra-feminist group against “domestic violence”], to his transition team. [16] [Emphasis added.]

Things did not improve for fathers in the family courts during Romney’s tenure.

The Massachusetts Lesbian & Gay Bar Association (MLGBA during Romney’s term), has recently added “transgender” and “queer” to its name:  It’s now the Massachusetts LGBTQ Bar Association. [17] Through that group, Romney was effectively seeking candidates who (in MLGBA’s own words in 2006) were “dedicated to ensuring that the Massachusetts Supreme Judicial Court decision on marriage equality is upheld, and that any anti-gay amendment or legislation is defeated.” [18]

The MLGBA attorneys had argued for years that the statute criminalizing sodomy (“the abominable and detestable crime against nature, whether with mankind or with a beast,” Ch. 272, Section 34) should be overturned. Romney seemed to agree in an interview with the Boston homosexual newspaper Bay Windows (in 1994). [19] And he was on record since 1994 as supporting “gay rights” and non-discrimination on the basis of “sexual orientation.” So it’s not surprising he reached out to this group to apply for judgeships.

In 1999, the MLGBA had honored Justice Margaret Marshall of the Massachusetts high court (later the Chief Justice behind the 2003 Goodridge “gay marriage” ruling) as keynote speaker at their annual fundraiser dinner. There she advocated extending rights for homosexuals and transgenders. This clearly exhibited her partiality on the “gay marriage” issue. The Massachusetts Constitution clearly states that judges must be impartial. [20] Yet Governor Romney chose to ignore this, refusing to support the grassroots activists’ call to remove her from office after her clearly biased and unconstitutional Goodridge ruling.

Though Romney held the country’s attention in 2003-2004 during the “gay marriage” constitutional crisis, he failed to lead as a conservative and check the errant judges. That may be all one needs to know about his true commitment to constitutional principles. [21] 

These two radical groups – the Women’s Bar Association and the MLGBA (later the MLGBTQ Bar Association) – were later instrumental in pushing the “transgender rights and hate-crimes” bill (passed in November 2011). [22] Yet they had been full-fledged participants in Romney’s judicial selection process.

One of Romney’s known homosexual judge appointees to district court was Stephen Abany (in May 2005). [23] Romney would have known Abany’s “sexual orientation” because he was an activist for gay-rights causes. Abany, a board member of the MLGBA, had testified at the State House in 1999 advocating repeal of the Massachusetts law criminalizing sodomy. [24] Such activism and glaring opposition to Romney’s stated support for traditional marriage apparently did not keep him from making this appointment.

A second homosexual (or at least, openly pro-gay-rights) judge was Marianne Hinkle:

Another Romney choice for the bench is Marianne C. Hinkle, a registered Democrat who worked as an aide to Governor Michael S. Dukakis in the late 1970s and prosecuted John C. Salvi III in the 1994 Brookline abortion clinic shootings. Hinkle, in her application for the bench, describes herself as a longtime active member of Dignity/USA, a group that advocates for expanded gay rights in the Catholic Church and society generally. [25]

There was likely a third “gay” appointee, since Romney told the National Journal that his second likely “gay” appointee was a “he.”
 
If Romney were truly supportive of traditional values, he would not have made these appointments. A RedState blogger commented (in 2007), “From 2005, the heart of his governorship, Romney’s appointments tilted left. Yet conservatives are lining up behind this guy? His one power to move Mass to the right a bit and he didn’t. And we’re to trust him?”  [26]

Romney said he paid no notice to “his nominees’ political leanings or sexual orientation”

Governor Romney insisted that “his nominees' political leanings or sexual orientation” did not concern him.

With increased attention on judicial nominees after President Bush’s nomination of John G. Roberts Jr. to the US Supreme Court, Romney said Friday that he has not paid a moment’s notice to his nominees’ political leanings or sexual orientation or to the impact his choices might have on a future presidential run. He said he has focused on two factors: their legal experience and whether the nominees would be tough on crime….

Observers in the Bay State legal community, meanwhile, said they see a contradiction between Romney’s judicial choices and his conservative rhetoric, including his stated opposition to same-sex marriage….

The governor said that, so far, he has had few chances to appoint judges to the highest state courts, where his criteria would change to include “strict construction, judicial philosophy.”

“With regards to those at the district court and clerk magistrate level, their political views aren’t really going to come into play unless their views indicate they will be soft on crime, because in that case, apply elsewhere,” Romney said. [27] [Emphasis added.]

Romney has tried to deflect conservative criticism of his appointments of gay-rights advocates by claiming that lower-level judges would not have their “political” opinions on GLBT issues come into play. A pro-Romney operative in Iowa posted this at RedState (in 2006):

The above is a key point. Ziuko on Red State commented: '”If Federal courts are the major leagues, state [and district] courts aren't even the minor leagues, they're a pick up game of tee ball”...

Who gives a rip if a small-time criminal court judge is gay!?!--especially if they have a judicial record of being tough on crime and are working in criminal courts! [28]

But this is disingenuous. Some very consequential cases have been in district courts where a judge’s pro-homosexual bias would be highly significant. One example: In 2005 in Lexington, Massachusetts, David Parker was charged with “trespassing” at his son’s elementary school for demanding his lawful right to be notified in advance of homosexual curriculum. That trespassing case went to Concord District Court. Another example: During the marriage amendment debate in Massachusetts in 2006, Catholic Vote staffer Larry Cirignano was falsely accused by an ACLU agitator with “assault and battery” and “civil rights violations.” That case went to Worcester District Court. [29] Furthermore, the “hate crimes” cases clearly involve criminal courts and a judge’s bias could color his rulings.

Here’s another infamous example of pro-GLBT bias affecting a state court ruling: In 2000, a radical lesbian superior court judge in Massachusetts who sympathized with transgender activists ruled that a junior-high boy had a right to wear fingernail polish and a skirt to school, and that the school administration had to support that behavior. An appeals court judge upheld the ruling. That case set a precedent Massachusetts school administrators now follow. [30]

Did Romney really not understand that openly homosexual judges or attorneys – at all levels of the legal system – would push for “gay rights,” “gay marriage,” “transgender rights,” or “diversity” programs in the schools? Certainly the GLBT activists grasped the significance of having “out” judges. An article in the homosexual magazine, Boston Spirit, explained (in 2008):

Now, it’s rather ho-hum, but the significance of their nearly two-decades-long presence in the Massachusetts judiciary – from municipal to district to probate to superior and appeals courts – is not lost on many. Openly gay and lesbian judges and changes in the law have made the court system “a much friendlier place for LGBT people,” explains Joyce Kauffman, a Cambridge-based family law attorney in private practice….

“Out gay and lesbian judges, just by their presence on the bench, create a shift in the culture,” says Katherine Triantafillou, a founder and former co-chairwoman of the Massachusetts Lesbian & Gay Bar Association, a professional association of lawyers created in 1985 to provide a “visible presence” within the state’s legal community and to impact judicial appointments. “We need out LGBT judge role models as emblems for our kids,” adds Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD). “We do want the judiciary to look like the population.”

[Lesbian Judge Barbara Lenk says the law] “evolves and develops. It is not carved in granite. Judges do not enact laws, but it is our job to interpret and apply them in specific circumstances. Those circumstances change over time, and that has to affect how the law is understood and applied…. Members of minority groups [e.g., homosexuals and transgenders] may see certain things differently based on their own experiences.” [31]

Beyond his declaration that a lower court judge’s sexual orientation is insignificant, equally disturbing is Romney’s claim that “he has not paid a moment’s notice to his nominees’ political leanings.” Instead, he has just “focused on two factors: their legal experience and whether the nominees would be tough on crime.”

Just how successful was he in removing “political leanings” from his appointment process? Apparently, he understood he had to tread carefully, and he knew that “strict constructionist” nominees would not fly in the Massachusetts legal community. In 2005, Davis Yas, editor of Mass. Lawyers Weekly,

… said the perception among most Bay State lawyers is that Romney's administration, when it comes to screening out politics from the process, is not much different from past governors.

"People feel the process has made some improvements, but in the legal community, there is still a sentiment that politics still plays a role," Yas said.

… some lawyers resent his cries of judicial activism in the wake of the SJC's same-sex marriage ruling of November 2003.

"Those in the legal community take the independence of the judiciary very seriously, and when he derisively calls them unaccountable and activist, that gets the legal community steamed," Yas said. "He hasn't exactly expressed great confidence or pride in our legal system." [32]

That is, one aspect of the “politics” Romney still had to maneuver around was how to please the liberal Massachusetts legal establishment.

Romney’s hypocrisy on judicial activism

Regarding judicial activism, the real problem is that Romney was glaringly inconsistent. While he’d published an op-ed and made speeches referring to the Massachusetts high court as “activist,” he had earlier (in 2003-2004) often called the “gay marriage” opinion “law” he must enforce. (Of course, the Boston Globe doesn’t deal with that inconsistency.)

In February 2004 (during the crucial period preceding his implementation of “gay marriage” in May 2004), he published an op-ed in the Wall Street Journal, warning us to “beware activist judges.” This was the height of hypocrisy, since he was himself not behaving so at that very time. He was kowtowing to the illegitimate Goodridge opinion, and his Chief Legal Counsel Daniel Winslow was working to devise new marriage licenses to include same-sex couples. All of that was being done by an “activist Governor” without the (Court-noted) required legislative authorization. But he still published this:

One Man, One Woman; A citizen’s guide to protecting marriage [33]
By Mitt Romney

Wall Street Journal

February 5, 2004

… There are lessons from my state’s experience that may help other states preserve the rightful participation of their legislatures and citizens, and avoid the confusion now facing Massachusetts….

Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature’s job to pass laws. As governor, it is my job to carry out the laws. The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the constitution. This is not simply a separation of the branches of government, it is also a balance of powers: One branch is not to do the work of the other. It is not the job of judges to make laws, the job of legislators to command the National Guard, or my job to resolve litigation between citizens. If the powers were not separated this way, an official could make the laws, enforce them, and stop court challenges to them. No one branch or person should have that kind of power. It is inconsistent with a constitutional democracy that guarantees to the people the ultimate power to control their government.

With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That’s wrong. …

While the law protects states from being forced to recognize gay marriage, activist state courts could reach a different conclusion, just as ours did. … The definition of marriage is not a matter of semantics; it will have lasting impact on society however it is ultimately resolved. This issue was seized by a one-vote majority of the Massachusetts Supreme Judicial Court. We must now act to preserve the voice of the people and the representatives they elect.

But Governor Romney evaded his own responsibility to act and failed to check the errant Court. Yet in the Wall Street Journal op-ed, he transforms the crisis into one for the people to settle through a vote on a Constitutional amendment (which they never had a chance to do).

In March 2004, he made this statement:

For all of us, the rule of law is bedrock. We’ve seen the lawlessness that has erupted in other states and how it undermines the higher purposes we all seek to preserve. I know there’s been a lot of speculation about what action I will take as Governor of the Commonwealth. Until the Legislature completes its work at the end of this month [on a flawed marriage amendment proposal], I will have no comment on the options before me. But let me state clearly that whatever I do will be within the bounds of the law. Just as the Legislature is working within the constitutional and legal structure of our state, I will do the same. [34]

On May 17, 2004, the day the “gay marriages” began in Massachusetts, Romney issued this brief statement: “All along, I have said an issue as fundamental to society as its definition of marriage should be decided by the people. Until then, I intend to follow the law and expect others to do the same.” [35] [Emphasis added.]

Soon after the null-and-void “gay marriages” began in Massachusetts, Romney testified before the U.S. Senate (on June 22, 2004) that he was concerned about activist judges: “The real threat to the States is not the [federal] constitutional amendment process, in which the states participate, but activist judges who disregard the law and redefine marriage...” [36]

Yet in the preceding months, he had treated the Massachusetts Court’s redefinition as “law” and refused to support the grassroots effort to remove the four errant judges (2004-5). [37] 

And in a speech to the nominally conservative Federalist Society (in November 2005), [38] he had the gall to declare the Massachusetts Court “unbounded the Constitution, precedent, and the law.” This speech is the height of hypocrisy in light of his own failure to check the Court on “gay marriage.” He said:

… my experience in Massachusetts is that when members of the judiciary do substitute their values and those of their like-minded friends in the communities that they socialize in, for those that are embodied in our Constitution, the consequences are much broader than they would have ever anticipated. And they’re not better.

Let me give a case in point, which is our Supreme Judicial Court’s decision with regards to same-sex marriage. Let me note I want to raise this topic not in terms of whether it’s a good idea to have same-sex marriage or not. I’m not raising this to talk about anything relating to tolerance. I believe that as a society we should be open and tolerant of different lifestyles, of different choices. We should respect people who have differences from our own. We should allow people of different sexual orientation to combine in contractual relationships [recognized by the state as civil unions or partner benefits?] and other relationships as they deem they’d like to do.

But I’m going to instead look at this from the standpoint of judicial philosophy and how we make important decisions of this nature and why, in my view, it’s a mistake for a decision of this magnitude to be made by a judicial body as opposed to a legislative body.

You probably know the history. Our Supreme Judicial Court in Massachusetts, by a one vote majority, found that in our Constitution, written over 200 years ago was a right for same-sex individuals to marry. John Adams would be surprised.

Now my judicially philosophically oriented liberal friends were happy, even celebratory. What’s wrong, they say, with allowing judges to expand the Constitution to do what they and other intelligent people think is the right thing to do? Well, the answer is there are a lot of things wrong with doing that.

First, when such a step is taken by the judiciary, rather than by the legislative branch, all sorts of legal confusion, as well as personal rights being ripped away from people, can occur. Let me give you some examples. In a legislative process, of course, you have hearings; you have all sorts of people vet the various potential outcomes. There’s a give-and-take. You consider the problems downstream. You try and deal with them holistically. Of course now and then you miss some and you go back and correct it over time….

[Regarding the expected challenge in the courts to the Massachusetts law that would ban on out-of-state same-sex couples marrying:] Will it be the law, or will it be social congratulations [the Court will seek]? That’s something which our court is going to decide over the coming months. But I can tell my socially liberal friends this: even if you like the outcome, aren’t you troubled by a judiciary totally unbounded by the Constitution, precedent, and the law? …

There are other reasons why I have concerns. One is that the judiciary, in my view, is not terribly well equipped to deal with matters of this breadth of scale. The judiciary is equipped to deal with individual consequences of a specific case in like minded circumstances. It’s not the ideal setting  to make extra constitutional rulings that impact fundamental elements of our culture….

Third, the court’s decision in my view is also troublesome because of its blatant disrespect for the democratic process and for democracy itself. The court is basically saying, what the majority of the citizens of this state feel on this issue is not relevant here. In other words, on this issue, your vote does not count. In my view, a decision to jettison the voice of the people should only be reached in the face of clear and legitimate constitutional grounding, not by stretching the words and precedent beyond their recognizable border….

Now let me note something else. That is that the extent of the far reach of our Court beyond the democratic voice of the people is heightened by even one more extension. That is recognize that what our Court did not only legislated from the bench for our citizens, but also for the citizens of other states as well….

We’re on the right track, but we’ve got to get up and start making some changes here and start defending those values that we think are critical to the preservation of our society, which are embodied in our Constitution, and insisting that judges do that.…

I am so delighted that these times have called out Judge Roberts and Judge Alito. God bless America and please give us more great judges like them. [Emphasis added.]

Note that Romney did not refer to the Massachusetts Constitution’s clear separation of powers as a reason the Goodridge “gay marriage” ruling was illegitimate. (The Constitution clearly states that only the Legislature can make or suspend laws.) Instead, he focuses on judicial activism as a problem to be corrected by the people’s vote (not by the other two branches of government, following their Constitutional duties). [39]

In that speech, Romney redirected attention away from his failure after the Goodridge ruling to uphold the man-woman requirement of the marriage statute. He chose instead to speak of the section he intended to enforce, regarding out-of-state same-sex couples. [40]

Can such a “legal mind” and prevaricator be trusted to appoint federal judges and Justice Department attorneys?

In June 2006, Romney submitted a letter to the U.S. Senate supporting the federal marriage amendment. [41] He said we must “prevent [marriage] from being redefined by judges like those here in Massachusetts who think that marriage is an ‘evolving paradigm’…  we are beginning to see the results of the new legal logic in Massachusetts just two years into our state’s social experiment.” It was as if he hadn’t also agreed with that Massachusetts “legal logic” which recognized the Court’s opinion as the supreme law.

He clinched these statements at the Family Research Council’s “Liberty Sunday” event in Boston in October 2006. He said “activist judges” forced gay marriage on the state, as if he had been a helpless, innocent bystander. Yet he still included a plug for “gay rights”:

The authors of liberty recognized a Divine Creator who bequeathed to us certain inalienable rights. They affirmed freedom of religion and proscribed the establishment of any one religion. Today, there are some people would like to establish a single religion for America . . . the religion of secularism. They not only reject traditional religious values, but also the values of the founders. And they set aside the wisdom of the ages. Their allies are activist judges. Here in Massachusetts, activist judges struck a blow to the foundation of civilization, the family. They ruled that our constitution requires same sex marriage. I believe their error occurred because they focused on adult rights. If adult heterosexual couples can marry, they reasoned, then to have equal rights, adult homosexual couples must also be able to marry.

But marriage is not primarily about adults. Marriage is primarily about the nurturing and development of children. A child’s development is enhanced by the nurturing of both genders. Every child deserves a mother and a father. Of course, the principal burden of the Court’s ruling doesn’t fall on adults. It falls on children….

The price of same sex marriage is paid by children. Our fight for marriage, then, should focus on the needs of children, not the rights of adults. In fact, as Americans, I believe that we should show an outpouring of respect and tolerance for all people, regardless of their differences or their different choices. We must vigorously reject discrimination and bigotry. We are all God’s children. He abhors none of us. [42] [Emphasis added.]

It was all the activist Court’s fault. Their reasons – focusing on adult rights – was the problem (not that they disobeyed the Constitution). Yet, the people must guard against being “bigots”! (Is it bigotry to demand adherence to the Constitution?) 

He made many statements in opposition to judicial activism during his first run for the Republican nomination in 2007 (catalogued at The American Presidency Project). For instance, in October 2007 he told conservatives at the Values Voter Summit (sponsored by Family Research Council): "I will appoint and fight for justices who follow the law and the Constitution, who understand judicial restraint and who won't legislate from the bench." And he said in a press release, "As President, I intend to nominate judges who respect the separation of powers, are committed to judicial restraint, and have a genuine appreciation of the text, structure, and history of our Constitution.”

Recently, he signed the National Organization for Marriage’s pledge which states that he will nominate to the federal courts, “judges who are committed to restraint and to applying the original meaning of the Constitution … and thus reject the idea our Founding Fathers inserted a right to gay marriage in our Constitution.

Romney not even tough on crime?

Recall that Romney assured that his judge appointees would be tough on crime. So he was quite distressed in November 2007 (during his first run for the Republican nomination) by a scandal Time Magazine referred to as “This Year’s Willie Horton.” [43] One of his district court judge appointees shockingly freed without bail a man convicted of murdering his own mother. Shortly after his release, the convict killed a young couple in Washington state. Note that the female judge was just one of Romney’s many appointees made, apparently, to please the Women’s Bar Association:

Twenty months after he put a career prosecutor on the Massachusetts Superior Court bench, confident in her law-and-order credentials, Mitt Romney called yesterday for the judge to resign because she released without bail a convicted killer who went on to allegedly kill again.

Eric Fehrnstrom, a Romney spokesman, said yesterday that Judge Kathe M. Tuttman should never have freed Daniel T. Tavares Jr. on personal recognizance in July, after he was charged with assaulting two prison guards. Tavares, 41, was near the end of a 16-year sentence for stabbing his mother to death in 1991 and had threatened in a letter – intercepted by prison officials in February 2006 – to kill Romney and other state officials, Fehrnstrom said.

On Monday, after five months in hiding, Tavares was arrested for allegedly shooting to death Brian Mauck, 30, and Beverly Mauck, 28, newlyweds who lived near him in a rural area south of Tacoma, police said.

Romney is now seeking the Republican presidential nomination, touting his record as governor. Some of his female supporters have highlighted his record of appointing women to the judiciary.

“There was a system-wide failure in this case starting with the judge,” Fehrnstrom said in a statement yesterday. “Her decision represented an inexplicable lapse in judgment and was inexcusable. Unless there are facts unknown to us, Governor Romney believes Judge Tuttman should resign.” [44] [Emphasis added.]

The Time Magazine piece quotes Romney’s fellow Republican Presidential candidate Rudy Giuliani on the crime rate in Massachusetts during Romney’s term:

On the campaign trail former New York mayor Giuliani has called on Romney to explain his decision to appoint Judge Tuttman. "It's not an isolated incident," Giuliani told the Associated Press, offering FBI crime statistics that he said showed a 7.5% increase in murders in Massachusetts while Romney was governor and a 12% increase in robberies during the same period. "The reality is, he did not have a record of reducing violent crime," Mr. Giuliani told the AP.

Romney has reacted by calling on Judge Tuttman to step down, describing her decision in the Tavares case inexcusable. The seriousness with which he has responded suggests that his advisors, like some political observers, see the Tavares case as similar to the 1988 Willie Horton incident, which famously hurt former Massachusetts Governor Michael Dukakis in his run for the presidency. [45]

The Boston Herald had even more damning information:

Former Gov. Mitt Romney’s administration failed to act on disciplinary recommendations that would have kept ex-con killer Daniel Tavares locked up another year - and behind bars at the time he was accused of killing a newlywed couple in Washington state.

Romney has decried the early release of Tavares by a judge, but the “good time” could have been revoked administratively while he was governor under the state prison disciplinary process, sources said. …

The investigation into the Tavares case found that the Romney administration mistakes were part of a broader pattern of lapses that stretched back to 1993. Overall, the probe uncovered six disciplinary complaints against Tavares between 1993 and 2005 that should have kept him in prison a total of 720 days, nearly two years beyond his release in July.

Despite Tavares’ long history of violence, the Romney-led Department of Correction took no action on recommendations that he be stripped of “good time” because of assaults on prison guards in 2003 and 2005, said sources familiar with a state probe into the case.

 … sources said the single most egregious breakdown came under Romney in 2003, when administration officials missed a 60-day deadline for filing paperwork to strip Tavares of 300 days of previously awarded “good time.” [46]

“Tough on crime”? Somehow the Romney campaign has managed to bury that story this time around.

Romney’s other liberal legal appointees

And what about appointments to the quasi-judicial Massachusetts Commission Against Discrimination (MCAD)? Late in his term, Romney named attorney Martin S. Ebel as Commissioner of MCAD. [47] In his ruling on maternity/paternity leave in 2008, Ebel pointed to the Massachusetts Supreme Judicial Court’s supposed “legalization” of “gay marriage” as its basis. He declared that the Massachusetts employment statute allowing two months unpaid maternity leave for women must be interpreted as “gender neutral” (to allow for “gay” adoptive fathers). One prominent Massachusetts employment law firm roundly criticized Ebel’s petty tyranny:

The MCAD’s new position on the MMLA [Massachusetts Maternity Leave Act] encountered criticism both for its content and the way in which it was delivered. The MCAD has been criticized for exceeding its authority, usurping the Massachusetts legislature by implementing a position that, in essence, rewrites a statute, and for altering a long-standing position without providing notice to the public and giving affected parties an opportunity to provide feedback and comments. That said, Commissioner Ebel has remained firm in outlining the MCAD’s new position and has provided no indication that it plans to reverse course … [48]

Another Massachusetts employment law firm criticized Ebel’s high-handed approach:

Based upon Commissioner Ebel’s comments at our seminar, we understand that the MCAD intends to proceed on claims of discrimination alleging that an employer failed to provide MMLA leave to male employees. This is a departure from the MCAD’s prior practice and its own guidelines on the MMLA, and no Massachusetts court has concluded that the MMLA should be interpreted as applying to both men and women. While there may be a logical basis for the MCAD’s opinion, we question the Commission’s authority to determine that the statute covers men and women. If the MCAD believes the statute as written is unconstitutional (in particular with respect to its application to adoption), we believe the MCAD should allow the legislature to correct it. [49]

Governor Romney’s legal appointments in his Executive Office also raise serious questions about his commitment to a conservative legal philosophy.

His Chief Legal Counsel for the first two years of his term, Daniel Winslow (previously a district court judge), became a moving force behind the illegal issuance of marriage licenses to same-sex couples (in 2004). Winslow takes credit for the idea of replacing “Bride/Groom” on the licenses with “Party A/Party B,” and led the training sessions for Justices of the Peace and Town Clerks (threatening them with legal action or firing if they didn’t comply. He refused JPs who asked for a religious conscience clause. In September 2010, the Massachusetts Gay and Lesbian Political Caucus actually endorsed the nominally Republican Winslow in his run for State Representative, thanking him for his support of the “gay marriage” court ruling. [50] (Winslow was the only Republican in the Massachusetts House to vote for the radical Transgender Rights and Hate Crimes bill in November 2011.) Winslow has recently served as Legal Counsel to the shadowy third-party organization Americans Elect. [51]

Romney’s Chief Legal Counsel at the end of his term, Mark Nielsen, was on record as pro-abortion (as a candidate for Congress in 2000), and saw to it that Catholic Hospitals were forced to give “morning-after” abortion pills - clearly misinterpreting a new statute and ignoring constitutional religious freedom protections. [52] Recently, the Boston Globe reported that the Romney administration removed (“purchased”) its Executive Office hard drives from the State House as the term ended, and deleted all emails from the server. Nielsen’s opinion of the legality of this conflicts with that of the Massachusetts Secretary of State. [53] Certainly, it belies any claims Romney may make for his belief in transparency in government.

Other apparently liberal attorneys in Governor Romney’s Executive Office included at least several Deputy Legal Counsels with “progressive” résumés and associations with groups promoting radical feminism, “social justice,” adoption by homosexuals, and generalized “diversity.” [54]

The bottom line

Mark Levin recently wondered on his radio show when Mitt Romney last read the U.S. Constitution, and declared flatly that Romney is not a conservative. [55] Similarly, conservatives in Massachusetts wonder how familiar he was with our state’s constitution.

On the basis of his record as Governor, it is doubtful that a President Romney could be trusted to appoint constitutional conservatives as judges – or even to appoint judges who are tough on crime. And his choices for Legal Counsel do not bode well for the federal Department of Justice.

Addendum 3/9/12: Atheists are OK as Supreme Court Judges or Atty. General

 Mitt Romney's interview with Tim Russert on 12/16/2007 [excerpt]:

MR. RUSSERT: So freedom doesn't require religion?

GOV. ROMNEY: Well, this--the, the context was talking about the, the founding of the nation and the, the sense in this case of John Adams describing the fact that our constitutional form of government and this American experiment required morality, which in turn required religion. And, and yet, of course, on an individual basis, you have many individuals of great morality and--that, that don't have any particular faith.

MR. RUSSERT: So if you determined that the most qualified person for the Supreme Court or for attorney general or secretary of education happened to be an atheist or an agnostic, that wouldn't prevent you from appointing them?

GOV. ROMNEY: Of course not. You, you, you look at individuals based upon their skills and their ability, their values, their intelligence. And there are many who are agnostic or atheist or who have very different beliefs about the nature of the divine than I do, and, and you evaluate them based on their skills. But I, I can tell you that I, I myself am a person of faith and, and respect the, the sense of the common bond of humanity that comes from that, that fundamental belief.

MR. RUSSERT: But there'd be no litmus test?

GOV. ROMNEY: No, no. There's no litmus test of, of that nature....

... GOV. ROMNEY: Well, people have differing views about faith, as you understand, and, of course, as I indicated there are, there are competing faiths in this nation. But the, the great thing, of course, is that our values are the same. We have Christians and Jews for instance. They don't have the same faith, but we certainly have the same Judeo-Christian foundation, and it's those common values that allow us to select people regardless of their faith for, for positions of secular leadership.

ENDNOTES

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