WHEN DAVID MCCULLOUGH published his highly acclaimed biography of John Adams last year, House Speaker Thomas Finneran with great fanfare presented members of the House with copies so that they could contemplate and better appreciate the life, struggles, and achievements of the Massachusetts native who along with Washington, Jefferson, and Franklin managed to break from Great Britain, wage the Revolution, and found the United States.
It was Adams who as a committee of one drafted the Massachusetts Constitution, which is the oldest constitution still in use in the world. As McCullough recounts: "Founded on the principle of the separation and balance of powers, the Constitution declared in a single sentence that in the Commonwealth of Massachusetts ‘the legislative, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws, not men.’" Adams’s model for an independent judiciary was incorporated into the US Constitution, and that is why Massachusetts is one of only three states that chooses its judges in the same way as the federal government.
So what are we to make of Finneran’s threatening suggestion that perhaps it’s time to think about electing our judges because they had the nerve to rule that the legislature either implement or repeal the Clean Elections Law, which had the support of voters in a statewide referendum? What would Finneran’s hero Adams have thought? Maybe Adams would be spinning in his grave. More likely the veteran of 18-century back-room deals would have recognized the cunning and calculated off-the-cuff remark for what it was: political blackmail. But the invisible hand of old man Adams may yet stay Finneran. If the Speaker or any of his allies were to try to act on this matter, it would take a constitutional amendment — no easy maneuver — to undo what John Adams so lovingly crafted.
The Phoenix, with some reservations, supported passage of the Clean Elections bill. We’ve watched attempts at its implementation drive Beacon Hill politicians — especially in the House — into fits of apoplexy. So we’ve come to the conclusion that a measure that so threatens, so frightens, so unscrews the almost automatically re-electable members of the House, might serve the public more effectively than we previously thought.
If the legislature has sound reasons to oppose the will of the people, it should voice them and vote to repeal Clean Elections. In the process, each legislator would have a chance to explain to his or her constituents why they as lawmakers know better than the people they represent. Maybe they’d prevail. That is "government by law, not men." But until that happens, the rump inaction on Clean Elections is an insult to voters. The State Supreme Court was right to force a carefully crafted and constitutionally sensitive resolution to the tawdry impasse.
Speaker Finneran’s petulant jawboning about our elected judiciary is only the most recent assault on the independence of the courts and hence on the quality of justice. Powerful legislators have long sought to punish judges who were not sufficiently responsive to requests for patronage. Perhaps the most infamous instance of such vindictiveness was the long-time feud launched by then–Senate president William Bulger against a judge who blocked the appointment of his brother Whitey, the fugitive drug-dealing mobster and murderer, who once sought a patronage job as a "broom" — the quaint term for no- or little-show janitors who serviced the downtown courthouse.
Finneran’s legislature has taken that principle of "don’t get mad, get even" and institutionalized it. Through budgetary sleight of hand, the legislature stripped judges of their power to hire the probation officers who serve their courts. In Springfield, where a legislator has been at odds with the local court, the entire court’s budget was decimated to the point where it now has one-sixth the personnel on a caseload basis as Boston. Is this institutionalized Bulgerism what Adams meant by an "independent" judiciary? How can any institution truly be independent when it doesn’t have the power to order its own day-to-day affairs? For years, inadequate funding hampered the courts. Now the budget crisis that engulfs the state promises to propel the challenge of administering justice into a crisis.
Estimates of how bad the budget shortfall will be vary from Governor Jane Swift’s $1.6 billion to Speaker Finneran’s worst-case scenario of $3 billion.
Under any circumstances, resolving such a challenge will be painful. But the lack of comity and vision exhibited by the governor, the House Speaker, and Senate president Thomas Birmingham all but guarantees that the results will be more unsatisfying than necessary.
The courts, lacking both savvy leadership and a natural constituency, and aided only by a small band of advocates, promise to suffer some of the most wrenching effects of the state’s fiscal crisis. Take the ill-advised plan proposed by the unions and too quickly embraced by Chief Justice Barbara A. Dortch-Okara, which would have all 7900 court employees work eight days without pay — either by taking extra vacation days, or with the understanding that they would likely be reimbursed in the future. This might present a short-term solution, but it creates the long-term problem of taking on an unfunded obligation to pay people back. Besides, even if all of the state’s 250 judges agreed to take the pay cut — and they are not required to do so — it would save only 25 jobs. Until next year.
The cost of the pay raises the legislature earlier voted for the unionized court employees this year almost equals the amount that would be saved by the furloughs. So why did legislators who knew since July that there would be a budget crisis vote the raises? The unions and the court administrators are fooling themselves and the public. An eight-day furlough this year is a temporary fix. It will not eradicate the need for layoffs next year. What the court system should do is evaluate what programs and people are central to its core mission of delivering fair and rapid justice. Tough choices require intelligent analysis, not knee-jerk responses.
During the last budget crisis, the State Supreme Court ruled that mandatory furloughs were illegal because they violated already negotiated contracts. This time the furloughs under consideration for the courts are voluntary in that they were proposed by the unions. The proposal, nevertheless, has proven to be divisive and coercive. If furloughs are to be a creative tool in coping with the budget crisis, they need to be adopted fairly across the board at every pay level and in all branches of government. That’s a tall order. If the bureaucrats, legislators, and other office holders who are so eager to see judges take pay cuts — and remember that judges, unlike legislators and other state workers, did not receive pay increases this year — let them step up to the plate. How much will the governor, the legislative leadership, the rank-and-file members of the House and Senate, and the political appointees be willing to sacrifice? If our elected leaders lead by example, then maybe the vast army of unionized state workers will be inspired to follow.
What do you think? Send an e-mail to letters[a]phx.com
Should Finneran stop waging war against the courts? Respond here in the Phoenix Forum.
