Baker, a moderate Republican with high favorability ratings in deep-blue Massachusetts, was already in the process of filling one state Supreme Judicial Court position due to the impending retirement of Justice Barbara A. Lenk when Justice Gants died Sept. 14 at age 65 following a heart attack.
Justice Gants' legacy includes a keen focus on individual liberties, criminal justice reform and access to justice. Bay State court watchers say replacing him with someone who shares similar values will be even more critical if President Donald Trump succeeds in appointing a conservative to the U.S. Supreme Court to replace Justice Ginsburg, who died Sept. 18.
"It's crucial that Governor Baker reclaim the leadership role of the Commonwealth of Massachusetts in having a Supreme Judicial Court that leads rather than follows its sister states and the federal courts when it comes to protecting human rights and the dignity and equality of all residents of the Commonwealth," said Laurence Tribe, a professor of constitutional law at Harvard Law School, adding that Baker must find "a brilliant and progressive jurist" to replace Justice Gants.
"Anything less would be an abdication of Baker's responsibility to be governor for the entire Commonwealth and not just a right-leaning fringe that might have provided at best a sliver of his support in the last general election," Tribe told Law360 in an email.
State Sen. James B. Eldridge, chair of the state's Joint Committee on the Judiciary, predicted Justice Ginsburg's death would only increase pressure on Baker to name someone molded after Justice Gants.
"There was already a good deal of sort of social pressure or sense from people who followed the courts that he was a giant of the SJC and was outspoken in a way that many justices or chief justices hadn't been in Massachusetts," said Eldridge, a Democrat. "It would be an important moment to nominate someone who could carry on that legacy."
Eldridge added that Justice Ginsburg's death has also put a spotlight on issues related to women's rights, reproductive rights and equality.
"There's even more pressure and a sense for Governor Baker that this is part of his legacy," he said of the appointments.
While the SJC's current justices are all well-qualified, Eldridge lamented that some recent opinions show they are not "liberal in the traditional sense." As an example, he cited the court's decision to invalidate a 2018 ballot initiative that would have added a tax on personal income over $1 million to fund investments in transportation and schools. Justice Gants dissented in the relatively rare split decision on the so-called millionaires' tax.
Eldridge said opinions like those have "set back the Commonwealth's agenda on investing in its people."
He fears a right-leaning U.S. Supreme Court could unleash decisions that "absolutely" imperil Massachusetts laws, including its landmark legislation that inspired the federal Affordable Care Act and successful state initiatives under the federal Americans with Disabilities Act.
Baker has boasted some of the highest approval ratings of any governor in the nation. With the replacements for Justices Gants and Lenk, Baker will have appointed every justice on the state's top court. While SJC appointments are not for life — a justice must retire at age 70 — Baker, like Trump, has an opportunity to shape the court for years to come.
Harvey Silverglate, a civil liberties litigator and of counsel with Zalkind Duncan & Bernstein LLP, disagreed that a rightward shift on the U.S. Supreme Court would likely erode the rights Massachusetts citizens enjoy under the state's constitution.
"Historically, the Supreme Judicial Court has been more protective of certain rights than the U.S. Supreme Court, also independently protective," Silverglate said. "These rights we are accustomed to in Massachusetts don't depend much on the U.S. Supreme Court."
Baker's job, he said, is to choose justices who will continue to protect those rights as recognized by the state's constitution, which served as a model for the U.S. Constitution written seven years later in 1787.
Regardless of whether the replacement of Justice Ginsburg on the high court imperils rights in the Bay State, Silverglate said the twin loss of Justices Ginsburg and Gants is a "real blow to civil liberties."
"Both of them were very strong civil libertarians. It is incumbent — especially with the death of Justice Ginsburg — to appoint somebody very much like Gants," Silverglate said.
Lawrence Friedman, a professor at New England Law Boston, said it will be important to examine the selections for both the federal and state top courts through the lens of federalism.
"Where the Supreme Court might become less welcoming of, say equality claims, it's going to become more welcoming of religious liberty claims," Friedman said. "In Massachusetts, with the oldest written constitution in the free world, we have a long tradition of interpreting our constitution independently of whatever the Supremes in D.C. are doing. I'd be hard pressed to think whoever the governor appoints isn't aware of that tradition and able to become a part of it."
Friedman cited recent SJC rulings on criminal procedure, illegal search and seizure, and a landmark decision making it easier to challenge racial profiling in traffic stops as examples of ways the state constitution has been interpreted to be more protective of individual rights than the Fourth Amendment.
Baker recently extended the application period for Justice Lenk's seat to Sept. 11, and the vacancy resulting from Justice Gants' death will be open until Oct. 16. The governor can fill the chief justice role either with one of the other five justices on the court, or through one of the two new appointments. His office did not respond to a request for comment.
Even before Justice Gants' death, Bay State legal organizations had been pressuring Baker to select a justice with a strong track record on racial justice and civil rights to replace Justice Lenk.
"If the Trump administration succeeds in appointing a new and more conservative justice to the Supreme Court, there will be more pressure in Massachusetts to appoint relatively more progressive justices in the SJC," said Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights. "The SJC appointments will be critical to preserve state courts as viable venues for urgent cases involving complex and sensitive racial and social justice issues."
Matthew Segal, the legal director of the American Civil Liberties Union of Massachusetts, said Baker's two picks "will really matter."
"People sometimes lose sight of the role the state courts play, but particularly during times when the federal courts are trending rightward, they are really important in everyone's day to day lives," he said. "There is no guarantee that the federal courts are going to be there when people need them."
--Editing by Jill Coffey.
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