Oped: Only you can prevent judicial nepotism

There are many reasons to oppose the nomination of former Senator Michael McCaffrey to fill the vacant Associate Judge of the Rhode Island District Court seat.

The Rhode Island Judicial Nominating Committee (JNC) will soon schedule an open, public meeting to fill the vacant Associate Judge seat of the Rhode Island District Court, created by Associate Judge Melissa DuBose’s resignation. Nine people are under consideration for the seat, including former State Senator Michael McCaffrey of Warwick.

Before I discuss the reasons for opposing former Senator McCaffrey’s nomination, I want to explain the process.

Filling an empty court seat in Rhode Island is highly political and opaque. The public portion of the process begins with the open meeting of the JNC, where candidates present themselves, deliver some comments, and answer questions posed by committee members. The questions have been described to me as “softball” and “not substantive.” The public comment portion of the process allows supporters and friends of the nominee to express their enthusiasm. Input from the public during public comment is permissible, but rare. To be allowed to present a public comment, an interested person has to sign up two weeks in advance.

After the public meeting, the JNC will hold a second meeting to discuss the public comments and the nominees. Eventually, the committee will whittle down the nine nominees to between three and five. These names will be forwarded to the governor. The governor will select one name and send it to the Senate for “Advice and Consent.” The Senate Judiciary Committee will hold a public hearing with public comment, pass the nominee onto the full Senate for a floor vote, and approve the nominee. The nominee will take their oath at a ceremonial event, sit on the bench, and issue rulings.

Although the public process begins with the first JNC meeting, the actual process starts much earlier, with the political, behind-the-scenes dealmaking that secures a name on the JNC nominee list. This occurs in various ways, but is centered on what might be considered the traditional "good-old-boy" network, where favors are exchanged and reciprocated. While there is a lot of opacity in the communications JNC members may have with those suggesting potential nominees, having a public interview and taking public comment is far more public than the federal system, where the president just sends a name to the Senate. It also beats the system in many states where judges are elected. The election process encourages potential judges to compete politically and can reward punitive, law-and-order type judges.

As I stated above, the JNC requires that people sign up to testify up to two weeks in advance. This limits the time frame for busy, interested residents of the state to participate in the process. From the agenda of the recently cancelled meeting:

“To provide public comment, please email Laura Jeanne Verdecchia at laura.verdecchia@troutman.com no later than April 28, 2025, with your name, title (if any), e- mail address, telephone number and the candidate you wish to comment on and you will be provided further instructions to submit public comment during the meeting.”

Fortunately, that April 28 date is no longer relevant, because the meeting has been postponed. This gives the public a chance to become involved. Consider using the following sample email to be added to the list for public comment:

“My name is _______________, a Rhode Island resident, and I will be providing comments on nominee ___________ at the next scheduled Judicial Nominating Committee meeting. Now that the meeting has been rescheduled, I have time to add my name.”

After the JNC sends its short list of nominees to the governor, he will submit a name the Senate after consultation with Senate leadership. Then the Senate process will begin. The Senate Judiciary Committee will accept public comment, but this will be nothing but theater. The Senate is a rubber stamp - the deal will have been done. There is no way to prevent a judicial nominee from Senate confirmation. If you have a qualm about the nominee, it is too late to do anything after the Senate begins its staged process of “advice and consent.”

This brings me to the meat of my email. Former Senator Michael McCaffrey of Warwick is one of the nine nominees, and he is on the inside track to receive the nomination and be confirmed as a judge.

Former Senator McCaffrey did not seek re-election to the Senate in 2023. He was the Majority Leader of the Senate when he stepped down, and had he stayed in the Senate, he would more likely than not now be the Senate President. He relinquished significant political power when he declined to run for re-election, as he aspired to become a judge. Not just any judge - an Associate Judge of the Rhode Island District Court is in a prime position to be considered for a seat on the Rhode Island Supreme Court, if one of those three seats becomes available.¹

Rhode Island is the only state in which all judges are appointed for lifetime tenure without a mandatory retirement age or some other retention system, such as renomination or a retention election. It’s a great gig, and it runs in McCaffrey’s family. Providence Journal reporter Kathy Gregg recently noted that McCaffrey’s sister and brother-in-law are judges in Rhode Island.

Rhode Island developed the JNC system because of the revolving door between the legislature and the bench. That revolving door stopped not because of the JNC but because the Rhode Island Ethics Commission banned the practice. Former Senate President Joseph Montalbano was the first former legislator to get on the bench post-reform because he lost re-election in 2008. Reporter Ed Fitzpatrick, who then wrote for the Providence Journal, once got former Governor Lincoln Chafee to admit, on the record, that his relationship with the Senate got much better after he put Montalbano on the bench. Erin Lynch Prata became the second State Senator (to my knowledge) to become a judge post-reform when the Ethics Commission board odiously voted to allow it - over staff objections. Former Senator McCaffrey doesn’t have to worry about the “revolving door” because he left the Senate over a year ago.

As a Senator, McCaffery opposed marriage equality and abortion rights. On marriage equality, then-Senator McCaffrey rewrote the bill with some of the most strident religious and conscience language in the country. This might be fine - I strongly believe in religious and conscience protections. But McCaffrey helped write this law, then worked with Senator Frank Ciccone (recently elected Senate Majority Leader) to try to completely gut the bill with a floor amendment. Then he voted against it. As a judge, he may one day be able to interpret the legislation he wrote. McCaffrey’s interpretation of the words he wrote might allow him to roll back protections for same-sex couples if his wording was clever, and he is a clever man. Former Senator McCaffrey might one day be able to interpret other laws protecting the LGBTQIA+ community if he were to be confirmed as a judge.

As a Senator, McCaffrey was part of a leadership team that blocked every bill to codify Roe v. Wade into state law for over a decade. He was also part of the pro-life's nationwide efforts to pass state laws to challenge Roe v. Wade by working to successfully pass the so-called “partial birth abortion ban” in Rhode Island in 1997. His opposition to abortion is centered on his sincere religious beliefs. However, his opposition means that, were he to be in a position to rule on some aspect of the law regarding reproductive rights, Rhode Islanders cannot be sure that his decisions will be based on the law rather than his personal religious beliefs. Recent (and future) United States Supreme Court decisions aptly demonstrate this problem. It didn’t matter what nominees Kavanaugh, Coney Barrett, and Gorsuch said during confirmation hearings - when push came to shove, Roe v. Wade was not “settled law” and was reversed.

There are many reasons to oppose former Senator Michael McCaffrey’s nomination to fill the vacant Associate Judge of the Rhode Island District Court seat.

1. There is a highly suspect process that nominates people based on political connections rather than merit.

2. The judiciary is not a family business.

3. Rhode Island attempted to seal the revolving door between the legislature and the bench, and McCaffrey’s nomination again opens that door.

4. LGBTQIA+ rights.

5. Reproductive rights.

6. There are other people on the list of nominees who don’t carry the baggage of Michael McCaffrey.

If the public is interested in interceding in this process, there is one real opportunity to do so: the next Judicial Nominating Committee meeting (as yet unscheduled). If people miss this meeting, it will be too late. Consider using the following sample email to add yourself to the list for public comment and send it to Laura Jeanne Verdecchia at laura.verdecchia@troutman.com:

“My name is _______________, a Rhode Island resident, and I will be providing comments on nominee ___________ at the next scheduled Judicial Nominating Committee meeting. Now that the meeting has been rescheduled, I have time to add my name.”

Don’t be surprised if the JNC reacts to this post by suddenly altering the meeting rules. The chain of political machinations and favors that led to McCaffrey’s nomination is virtually unbreakable, and many people will work covertly and overtly to attain their desired outcome. But just because a fight might be unwinnable doesn’t mean it isn’t worth having. And who knows? We might win.

1. Becoming a Rhode Island Supreme Court Justice is slightly different because “advice and consent” is needed from the House of Representatives and the Senate, a vestige of the pre-JNC process when the Supreme Court was chosen by the “Grand Committee of the House and Senate” sitting together.