High court nominee's questionnaire ruled confidential

MASSACHUSETTS–The questionnaire completed by former U.S. Solicitor General Charles Fried for the state’s Judicial Nominating Council, which ultimately recommended his appointment to the state’s Supreme Judicial Court, is confidential, that court ruled in mid-July. Fried, who now serves on that court, had recused himself from the case.

Affirming a lower court decision, the court ruled that the nominating council was created solely to assist the governor in carrying out his constitutional obligation to nominate judges and that its records are personal to the governor. The nominating council serves no public purpose, the court ruled, pointing out that the state’s Executive Council which reviews the judicial nominations conducts its review openly.

As chief litigator for the United States during the Ronald Reagan administration, Fried had argued for overturning Roe v. Wade, the U.S. Supreme Court decision that abortion can be legal. Based largely on his position in that case, Fried’s nomination to the Massachusetts high court was unusually controversial.

After the nominating council recommended Fried’s appointment in 1995, Cambridge attorney Ann Lambert asked its director to release the lengthy questionnaire Fried had submitted. The council refused, saying it was not subject to the public records act because it exists only to advise the governor.

The acting state supervisor of public records ordered the questionnaire released, but the nominating council sued in Superior Court in Boston to revoke that decision. In August 1995 the Superior Court ruled for the nominating council and Lambert appealed.

Lambert argued before the Supreme Judicial Court that there is no executive privilege in Massachusetts that would protect records used by the governor. She also argued that public policy favoring openness requires disclosure. A member of the Executive Council submitted a friend-of-the-court brief supporting Lambert’s request, saying that the Executive Council could perform its function better and better serve the public if it had access to materials reviewed by the nominating council. (Lambert v. Judicial Nominating Council; Plaintiff’s Attorney: Mark Batten, Boston)