Judge Barbara Lenk’s confirmation hearing for her appointment to the Supreme Judicial Court lasted more than eight hours as the Governor’s Council heard testimony for and against her appointment on Wednesday. If confirmed, Lenk would be the first openly homosexual member of the highest court of Massachusetts.
However, most of the councilors said that they would not factor Lenk’s sexual orientation into their decision.
“My questioning, while it may seem blunt, is the same questioning that I go through with every person that comes here. It has never been based on orientation, and it won’t be this time either,” said Councilor Mary-Ellen Manning.
Manning, along with Councilor Terrence Kennedy and Councilor Marilyn Petitto Devaney, reprimanded Gov. Deval Patrick for including Lenk’s sexuality in his announcement of her nomination.
“I think it’s unfortunate that this administration injected the nominee’s sexual orientation into this process,” Manning said. “And I think it did a great disservice to the qualifications of the nominee.”
During the hearing, Devaney and Manning discussed Lenk’s decision in a 2001 case that defined the state’s incest laws as only pertaining to intercourse that could result in a child.
“I am very concerned about this incest issue. . .it classifies people on the basis sexual orientation and punishes only people that engage in a certain sexual act of incest that are heterosexual,” Devaney said. “To me sex is incest whether or not it is father or son, or whether someone gets pregnant, it’s wrong.”
Lenk said her decision was a strict interpretation of the law at the time and the legislature needed to update the state’s definition of incest.
“We had no choice but to say Smith dictates the results here, and here the results were to say that statute was constitutional and these defendants remain convicted,” Lenk said. “I think incest is a horrible thing, but these statutes are for the legislature to fix.”
Councilor Charles Cippollini depicted Lenk as a judge prone to activism and supportive of gay rights.
“Same-sex marriage became law by judicial activism,” Cipollini said. “However it is not settled law, what say you?”
“I think the Goodrich decision is settled law,” Lenk answered, referring to the landmark 2003 Supreme Judicial Court decision that ruled that same-sex couples had the right to marry.
During the hearing, Lenk refused to answer many speculative questions on legal matter, claiming that she decides law strictly on the specifics of each case.
“I’m not trying to be evasive. But you know you are supposed to decide cases with an open mind, with a persuadable mind, on the basis of the briefs and the arguments made,” Lenk said. “I don’t have, as a judge, a carte blanche to have a variety of opinions on a variety of issues, to talk about them in public, and then have any that could come in front of me and say this person is not impartial.”
Lenk received praise from the witnesses submitted to the council by herself.
“In my experience I know her to be intelligent, competent, conscientious, she has balanced judgment, she’s thoughtful, she’s collegial, she’s a consensus builder, she’s hardworking, her decisions are well written and well-reasoned,” said Judge Roderick Ireland, Chief Justice of Massachusetts Supreme Judicial Court.
“In addition to her professional qualities, her strong personal skills, highest level of integrity such as decency, fairness and sincere interest in others led others to seek her out as a mentor,” said Andre Jasse, the retired managing partner of Lenk’s former law firm of 15 years.
The eight-member panel is not expected to immediately vote on Lenk’s nomination. If appointed, Lenk’s term would last until the mandatory retirement age of 70.
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