Chief Justice Fabricant Retirement ReflectionsPosted: June 28, 2021
Interview with Superior Court Chief Justice Judith Fabricant
by Hon. Debra Squires-Lee and Chief Justice Judith Fabricant
Voice of the Judiciary
As an Associate Justice of the Superior Court, I had the opportunity to interview Superior Court Chief Justice Judith Fabricant after she announced her retirement from the bench. What follows is an excerpt of our discussion, condensed and edited for clarity. -Debra A. Squires-Lee
Q: Chief, you just announced your retirement. How are you feeling?
A: I feel mixed. In a way, I feel great because I really am looking forward to having more free time and less stress. I will miss all of the people and a lot of the activity and the opportunity to feel useful. I’ll need to look for other ways to feel useful, but not just yet. I’m going to take some free time.
Q: Can you tell us about your life before you became a judge. Anything about your upbringing, education, or career that led you to the judiciary?
A: Well, I grew up in Newton, I went to public schools in Newton. I went to school at a time when there was much emphasis on social justice, as there is now, but there certainly was then. I wanted a career of making a difference. I was also very conscious that women get steered into certain things. I had the idea that I needed to have a professional credential, otherwise, I would always be somebody’s assistant. I think that has changed, but it hasn’t changed quite as much as we might wish.
I went to college and law school at Yale, with a couple of detours here and there. I spent a year teaching English in Thailand, and a year in Washington working for an organization that worked on hunger. After law school I did a clerkship with First Circuit Judge Levin Campbell, who was a great role model. Working for him was probably the first time that the idea of becoming a judge really ever entered my mind, because I had an opportunity to see a really excellent judge in practice, and to develop an image of what an excellent judge does and how he thinks.
After clerkship, I went to a law firm, which was the path of least resistance at the time, with a lot of loans to pay. I did that for three years and had my first child while I was there. Then my husband said he wanted to go and do a fellowship in North Carolina. I said yes to North Carolina and applied for a lot of different things and got a job as an assistant DA in Wake County.
That was a very different experience. I was in the courtroom on my feet all day, every day, dealing with unpredictable things. It was an enormous learning experience. It was an experience of becoming familiar with a courtroom in a way I don’t think I ever would have at a law firm.
We were there for two years. When we came back, I was pregnant with my second child. I stayed home for a few months and then got a job at the Essex DA’s Office in the Appeals Division, doing criminal appeals on behalf of the Commonwealth. Doing appeals is a very good mommy job, and it has a level of intellectual depth that I really appreciated, and I liked it a lot.
I was paying more for daycare than I was earning, which is one of the unfortunate anomalies of the public sector in Massachusetts. I think that has been mitigated somewhat since then, but it hasn’t been completely overcome. I also felt like I needed to diversify a little bit. At that point, I moved to the Attorney General’s Government Bureau, which represents agencies and officials of state government in civil litigation. I was there for eight and a half years, the last four of those years as Chief, and was appointed to the bench from there.
Q: I have to follow up on something you said which is that Judge Campbell was an excellent image of what an excellent judge does and how he thinks. What is your image of what an excellent judge does and how she thinks?
A: Well, I’ll start off with Judge Campbell and extrapolate. I came out of law school never having met a judge except in interviews for clerkships and having no sense of how they really operate. I met a person who came at it with no preconceived notions, with no agenda, with integrity and strong values, but no agenda to do anything other than evaluate the facts fairly and accurately and apply the law fairly and accurately.
I came to see that, yes, that is exactly what a judge is supposed to do. I think it requires deep thinking about who the litigants are, what it means to them, what they have at stake and how it affects them. It requires deep thinking about the law and making sense of the law in a way that is fair, fully faithful to the law, and reflective of who the parties are and how it affects the parties.
I think of something [Chief Justice] Ralph Gants used to say to us. Which was that, if the law seems to be telling you to do something absurd, don’t do it. I think Judge Campbell followed that without ever quite saying it and I admired that.
Q: I’m so glad I asked that question. Why did you decide to apply to become a judge?
A: I had spent enough time in courtrooms, enough time before enough different judges that I had come around to the idea that this was something I could do and would really like to do. I got some encouragement from a source who made me think there might be an opportunity. When you get that sort of encouragement, you take it. At least that was my thinking.
Q: Did being a judge live up to your hopes and expectations? If so, how, and if not, how didn’t it?
A: Yes, it did. It’s an opportunity to be neutral. That is, you don’t have an obligation to serve a client [or] to try to make a client happy. Your job is to do the right thing. That really is the job of a judge. There are pressures from all directions all the time, but your job is to do the right thing. Your job is to apply the law to the facts in front of you. If you keep that clearly in mind, you deal with the pressures appropriately and you avoid the pitfalls. I always felt that I could do that, and that doing it was enormously satisfying. I’ve had wonderful colleagues, and the colleagues work as a team and help each other as a team and support each other as a team. That’s always been enormously satisfying.
Q: What was the most challenging part of your job?
A: We all know that that there are challenges in the state court system of resources, of inadequate technology. In some buildings, the buildings themselves are very difficult to work in. We all know that. We all just deal with it, because, fundamentally, it’s much less important than the substance of the work and the people.
The real challenges are not the resources. The real challenges are the same thing as the rewards, in the sense that it’s sometimes very difficult to understand the true situation in each case. It’s sometimes very difficult to understand how the law applies to a set of facts that are unique or don’t quite fit the mold or are hard to really, confidently perceive accurately.
Q: Is there a case that you presided over that you still think about that you’ll never forget for any reason?
A: Well, I guess one thing I would say about that is you’ll recall that [U.S. District Court Judge] Bill Young spoke at our conference and he quoted another judge as saying that the most important case is the next one. He’s absolutely right, and that’s a very important thing for judges to hear.
If I think back to the ones that still keep me up at night, I think about one that I tried pretty early on involving a serious crime and a young defendant who was an immigrant, had been brought as a small child with his family. The parents had become citizens and, somehow, they just didn’t get around to making him a citizen. He was tried and found guilty. I gave him a serious sentence and then he was deported, and everybody knew he would be. This was about 20 years ago in a very different political scene from now. It made me very sad. He was deported to a place where he had nobody, knew nobody. It feels to me that if someone grows up in our society and grows up badly, that’s on us and it’s hard to see why it isn’t our responsibility as a society to deal with it.
That’s one that has haunted me over time, but that’s a situation where there is nothing a judge can properly do about it. The judge’s role is to try the case fairly, apply the law fairly, give everybody an opportunity to bring out the facts fairly, sentence in accord with the law, and collateral consequences that are under somebody else’s control are under somebody else’s control.
Q: You were named Chief of the Superior Court in 2014. You’ve now served six and a half years. What was the most challenging part of serving as chief, and what did you find most rewarding?
A: Those things go together. The rewards are my colleagues, I love them, and I love that our colleagues support each other, help guide each other, especially the newer ones, and that as a group, we promote excellence. That’s the great reward, and the great challenge is to try to promote that spirit, the spirit of excellence, the spirit of mutual support, consistency.
One of the things that comes up in managing any group of people is that individuals have crises. Sometimes it takes the form of the media going after somebody, often unfairly. Sometimes it’s simply that the media misunderstands what the job is, and what the judge is supposed to do.
Q: How did you perceive your role as chief in those circumstances?
A: First, making sure the judge knows about it. Sometimes I will become aware that a person a judge released from custody or gave a sentence that somebody might think was too lenient, that this person has gone out and committed some terrible crime. I will learn of that before the judge learns of it and I want to tell the judge directly so that it doesn’t get to the judge first in the form of a media question.
Then I have a lot of conversation with the Public Information Office about what we can and cannot properly say about the matter, because we’re all bound by the Code of Judicial Conduct, and in that sort of situation, many times the case is still pending in some form, which means we can’t comment about it publicly. The judge can’t, I can’t, the Public Information Office can’t, but what we can do is put out information that provides an accurate explanation of the law and the type of proceeding involved.
Q: I want to transition a little bit, Chief, thinking about the 25 years you’ve been on the bench, looking back, how has the Superior Court changed?
A: I would say the essential spirit of the court in the sense of collegiality, support for each other, commitment to the rule of law, that essential spirit has not changed. My guess is it has never changed, my hope is that it never will change. There is a lot that has changed in terms of how we function every day.
The most obvious is technology. When I was new, most of the clerks had no computers, none at all. They were keeping handwritten minutes, handwritten docket sheets, handwritten lists of what’s on for hearing on any given day. There was no way to look anything up. Over the next several years, all counties got computers and judges got computers that they had in their lobbies so that you could use word processing, but, depending on where you were, you wouldn’t have access to anything other than word processing.
When I started, the norm for judicial assignments was by the month. Some judges would stay where they were all the time, the ones who were most senior and had a place they liked to stay, and so they would stay where they were all the time, but most judges, and certainly, the newer ones, were moving every month. It had advantages, as a new judge, you got to see lots of different places and lots of different ways of doing things, but obviously it was very inefficient.
We had civil time standards that started in 1988. We were far ahead of most of the world in civil time standards. We had no criminal time standards until 2004. Criminal time standards generated a lot of opposition and a lot of controversy, but ultimately, I think, everybody came to understand that you need them. Even if you can’t meet them all the time, or even most of the time, you need a standard, so you have a sense of what the norm is, and when you’re meeting it and when you’re not meeting it.
And then we also started Rule 9A for civil cases in 1988. Rule 9A meant an enormous change from what had been the practice before that, which was that you file a motion subject to the opposition procedure. You serve a motion subject to the opposition procedure, and if there’s no opposition within a certain period of time, you file it and then you’d go to the motion session for a hearing.
The judge in the motion session was doing all the motions, so the judge, of course, would never read anything in advance, because how could the judge possibly read everything in advance if that judge has to do all the motions for all the sessions? In my first few years as a Judge there was a constant cry in the civil bar, “Bring back the motion session,” with some good arguments to support it.
That is, a lot of people would learn the ropes as young lawyers by going to the motion session and sitting there and waiting and watching the leaders and seeing what they did and talking to each other, so not having a motion session, you lose that. On the other hand, in non-COVID times, every civil session in Superior Court does a motion session every afternoon. The judge has a chance to read the papers because the cases are divided up in sessions. The papers are meaningful in a way that they couldn’t possibly be in a single motion session.
One [additional] thing that has changed over that time is, when I came in, I got lots of good informal mentoring. I had one person who was assigned as my mentor for a brief period, and I sat with her a few days. But we didn’t have the formal, really structured orientation and mentoring program that we have now for new judges. The educational program that we have now for new judges is a dramatic improvement.
Q: What are you most proud of as Chief?
A: I think I have promoted collaboration, not just among judges but among all of the people we work with. Collaboration with clerks, probation officers, other Trial Court departments, the Trial Court infrastructure, court officers, facilities, the bar – a sense of, we should talk to each other, we should learn from each other, we should work together. Not on everything – there are times when it’s not appropriate to do that, but most of the time it is appropriate to do that. I feel proud of having promoted that collaborative culture.
Q: You have been successful because we are a team, we are all working together. That comes from the top, for sure.
A: That’s what I think we should be.
Q: What advice would you give to the next Chief?
A: I guess, the one piece of advice I would give is, in managing any people whether it’s judges or anyone else, you want to bring out the best in them. Whoever a person is, that person has strengths, and you want to find out what those strengths are and find ways to allow the person to shine.
If you go about trying to change people, it’s not going to work. You’re not going to fundamentally change people. If you go about looking for their strengths and finding where those strengths can shine, I think, you’re more likely to be successful.
Q: That’s great advice. What unfinished work do you think you’re leaving behind as Chief?
A: Well, we have to get the rest of the way through the pandemic. We know how to get there. There will be glitches that arise between here and there that the next Chief has to deal with. We know where we’re going, we know how we’re going to get there, we have a path laid out. Once the pandemic is over, the Court needs to evaluate what we’ve learned from it. We’ve changed all kinds of things we do for the pandemic. Some of those are good changes that we need to preserve. Some of those changes are not and should not be preserved. As you know, we already have a committee working on that, and that process will need to be brought to fruition.
There is some planning for new courthouses and renovations that needs to happen that the new Chief will be involved in. I’ve had some involvement in it but somebody else will take over. So that’s what I feel I’ve left unfinished, but you can’t finish everything.
Q: What message would you give to lawyers who are toiling in all different fields, criminal bar, civil bar, about what they can do to help ensure our mission, justice with dignity and speed, is met?
A: Well, the first answer to that is always, support the trial court’s budget, and the organized bar knows that. In particular, right now, support the judiciary IT bond bill. That is something that is pending right now and is really important. I think the bar can easily see that we are not where we need to be in technology. We’ve made enormous strides but we’re not where we need to be and it’s going to take the IT bond bill to get us there.
More generally, I think, the answer is collaboration, that is: work with us, understand the challenges we need to deal with, and assist us. One of the ways that lawyers assist us is by treating the court and everybody in the process with dignity, conducting themselves with dignity, that means, civility to each other. Lawyers working together to resolve problems sensibly, talking to each other civilly. Most of the time, you serve your client most effectively, if you have good, strong, positive relationships with counsel for the other parties, and you maintain those good, strong, positive relationships by talking to each other, being civil to each other, treating everyone with dignity, and coming into court prepared, both in the sense that you’re prepared to present your case but also, you’re prepared to resolve your case, in a realistic, sensible way.
Q: Do you have any closing words?
A: Let’s talk for a moment about justice with dignity and speed. The phrase “Justice with Dignity and Speed” is an encapsulation of the mission statement. It’s easier for people to remember this short version, rather than the entire mission statement. It’s a good slogan in that it captures the essence of what we’re aspiring to do, but it tends to be misunderstood. The word most often misunderstood is “speed.”
A word that would capture what we mean more fully is “timeliness.” We have all learned in recent years that speed is dangerous, because when you’re trying to make quick decisions, that’s when you fall into stereotypes. If you’re being careful to avoid stereotypes, as you should be, and to ask yourself about the stereotypes that are in your head, speed is not going to facilitate that. You need to take time to think about what stereotypes you might be falling prey to.
If you think in terms of “timeliness,” what that means is, everything should take however much time it needs to take, to do justice and to treat people with dignity, no more and no less. I think of timeliness as the aspiration, and it’s part of justice. If people have to wait unreasonable periods of time for an answer, they’re not getting justice and they’re not being treated with dignity.
Q: Thank you very much, Chief. This was fabulous.
Hon. Debra Squires-Lee was appointed to the Superior Court in 2018. Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.
Chief Justice Fabricant
by Hon. Janet L. Sanders
There was a time when Judy Fabricant and I seemed to be living parallel lives – with her several steps ahead of me, of course.
I first met Judy at the annual dinner of Hill & Barlow. Although it would dissolve some twenty years later, the firm was one of the most respected in Boston in the 1980s. Judy had already been at Hill & Barlow for about a year after a clerkship with Judge Levin Campbell on the First Circuit. Still in the middle of my tenure as a clerk at the federal district court, I had just accepted an offer to join the firm as an associate.
At the dinner, I noticed that Judy was pregnant: she was in fact due to have her baby shortly. I planned to tell the partners that evening that I too was pregnant and would not be starting on the date originally planned. I thought they would be delighted. (They were not.)
Judy returned to the firm after the birth of her son but only briefly. By September 1984, when I began work at Hill & Barlow (having had a son myself), Judy had departed for North Carolina where her husband was doing a medical fellowship. I didn’t expect to see Judy again.
In North Carolina, Judy worked as an assistant district attorney in the Wade County District Attorney’s Office in Raleigh, trying cases in both district court and superior court. Over the next two years, she would have 32 jury trials under her belt. My professional life took a different turn: after several years at Hill & Barlow, I joined a small criminal defense firm. I did not try anywhere near as many cases as she did, but like her, I loved being in court.
Our lives converged again when Judy moved back to Massachusetts into a house just a block away from me in Brookline. By that time, she was a mother of two children, and I was the mother of three. Our children attended the same elementary school. We had friends in common.
Back in Boston, Judy continued her work in the public sector, first in the appellate division of the Essex County District Attorney’s office, then in the Massachusetts Attorney General’s Office. In 1992, she rose to the position of chief of the Government Bureau. In the meantime, I was squaring off against the government in state and federal court.
Within a year of each other, however, our professional lives again ran in parallel. Then governor William Weld (who, coincidentally, had been at Hill & Barlow before either Judy or I joined the firm) appointed me to state district court in 1995 and Judy to the Superior Court in 1996 – a position that that I could only imagine occupying.
By the time my own dream of becoming a Superior Court judge was realized, Judy was already well respected among her colleagues. She worked tirelessly on several Superior Court committees, including chairing the all-important Education Committee. Her opinions were scholarly, and her temperament a model for those (like me) prone to impatience. Still relatively new to the court, Judy already had the wisdom and good judgment of the seasoned judge.
In 2005, then Chief Justice Barbara Rouse appointed Judy to be the Regional Administrative Judge for Norfolk Superior Court. A few years later, I would follow in her footsteps there and become the beneficiary of certain policies that she had implemented – among them that the First Session start at 9:00. (Judy’s punctuality is legendary.)
Norfolk Superior Court was also where I cut my teeth as a new judge – and first experienced the pain of being reversed. It was in a case where Judy had denied the plaintiff injunctive relief on the grounds that he had no reasonable likelihood of success on the merits. When the case later came to me on a motion for judgment on the pleadings, I saw the legal issue differently and ruled for the plaintiff, leading to a reversal by the Supreme Judicial Court. Judy got it right the first time. I realized that I had a lot to learn.
Back in Boston in 2007, Judy joined Ralph Gants and Alan van Gestel in the Business Litigation Session. There, she gained the admiration of the most senior people in the bar. She was also a trusted advisor of then Chief Justice Barbara Rouse. It therefore came as no surprise when Judy was appointed to succeed Judge Rouse upon her retirement. In the meantime, I had myself become part of the BLS team of judges. With Judy’s appointment, our professional paths would no longer run in parallel, however.
In agreeing to being Chief Justice of the Superior Court, Judy took on an almost impossible task. Judges are more accustomed to directing others than in accepting direction. We are an independent- minded group and special skills were needed to manage us. I knew that I did not have those skills but that Judy did.
First, after two decades of being on the bench, Judy had a thorough understanding of the job that we do and just how hard it can be to do that job well. She had herself experienced the stress that comes from making difficult decisions and could therefore anticipate when her support was needed. If we made a mistake, she was there to listen – and to offer constructive suggestions as to how we might avoid making the same mistake again. We accepted those suggestions precisely because we knew that she knew what she was talking about. She had been there.
Second, Judy is the model of discretion. Judges are human beings with human problems that can at times interfere with our doing our jobs. In order to be aware of those problems, a chief must be trusted to keep certain information in confidence. Judy had our trust. She did not listen to gossip nor did she spread it, but she always knew what was going on.
Third, Judy’s temperament was perfectly suited to the position. She was able to sit through long committee meetings and listen patiently to the views of others. Although she was not shy to offer her opinions, they were delivered in an even tone, her words chosen with care. She can be a powerful presence in a room without being confrontational.
Finally, Judy has tremendous respect for the institution that she serves, and more generally, for the rule of law. She demonstrated that respect both in her work ethic and the integrity with which she performed her duties as Chief Justice. We follow her lead because she lives by what she says.
Judge Fabricant has been an inspiration to all of us, but most particularly to me as her colleague, her neighbor and her good friend. She may be retiring from the bench, but I am confident she will continue to contribute in some important way. And I know that I will be guided by her example.
Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she worked as a criminal defense lawyer and then served on the district court beginning in 1995.
Reflection on Chief Justice Fabricant
by Hon. Jeffrey A. Locke
In 2009 the Massachusetts Superior Court celebrated its sesquicentennial anniversary with a series of court-sponsored presentations and events recognizing achievements over its 150- year history. As part of that effort, then-Chief Justice Barbara Rouse conceived of a collection of essays by past and present justices of the court, a large undertaking that required substantial managerial and editorial expertise. Not surprisingly, she solicited Judge (now Chief Justice) Judith Fabricant to oversee the project which resulted in Reflections of the Justices, a collection of 55 essays published by the Supreme Judicial Court Historical Society. In her Preface, Judge Fabricant wrote of three consistent themes underlying the individual vignettes: that judges recognize “the honor and the obligation entrusted to us, and we accept it with humility, dedication, and joy;” the collegial and supportive nature of the Superior Court bench; and the need for a coordinated and cooperative administrative structure to manage a burgeoning caseload and respond to the challenges of the times.
These themes characterize Chief Justice Fabricant’s tenure on the Superior Court. She was appointed to the court at age 41by Governor William F. Weld in 1996. Though relatively young, she was well qualified, having served as chief of the Government Bureau in the Attorney General’s Office for four years, worked as an assistant district attorney and as an associate at the law firm, Hill & Barlow, as a legal writing instructor at Boston University School of Law, and as a law clerk for 1st Circuit Court of Appeals Judge Levin H. Campbell. She was a graduate of Yale College and Yale Law School.
Notwithstanding her outstanding professional and educational pedigree, Judge Fabricant has never considered herself smarter or better than the attorneys or litigants who came before her in civil and criminal sessions. Although firmly in control of her courtroom, Judge Fabricant exhibited an air of humility, patience, and respect for the parties and their representatives, and gave each case her full attention and best judgment. Her written decisions were a model of intelligence and clarity, focused on the established facts and prevailing law and written with precision and without flourish. Her annual assignments included civil and criminal sittings, including in the busiest civil sessions in Suffolk County. She was tapped to serve as a judge in the Business Litigation Session for several years. As a trial judge, she strove to ensure that every person seeking justice through the courts received a full and fair hearing and her sincere and honest judgment.
Aside from her responsibilities as a trial judge, Judge Fabricant demonstrated her commitment to the collegial nature of the court through service on countless court committees and judicial initiatives. She was a member of the Commission on Judicial Conduct, served as a regional administrative justice in Norfolk County, was on the Superior Court Rules and Civil committees for years, was chair of the court’s Education Committee responsible for semi-annual educational conferences (which under her watch started promptly at 9:00 a.m. and ended precisely at 4:00 p.m.), and served as the Superior Court designee to the Trial Court’s first Strategic Plan. In these various roles, Judge Fabricant contributed to the improvement of judicial operations and enhanced judicial performance.
In her six and a half years as Chief Justice, Judge Fabricant oversaw many other initiatives to improve the operations of the court and the collegiality of its justices, to include the integration of the MassCourts computer system, the formulation of written protocols for regional administrative justices, court magistrates, probation violation guidelines, best practices in criminal sentencing and, most recently, a year-long project to develop a set of plain-language jury instructions for use in civil and criminal cases. These written materials, the product of Judge Fabricant’s red-line editing for precision and clarity, will surely improve the administration of justice for years to come. Additionally, Chief Justice Fabricant presided over the induction of 39 new judges, welcoming them to the Superior Court, the “great and historic trial court of the Commonwealth” and promising them the support and fellowship of their colleagues.
Chief Justice Fabricant handled the myriad other responsibilities as chief with grace, fairness, and understanding. She painstakingly created the annual list of circuit assignments based not only on the needs of the court but with sensitivity to the individual and personal wishes and needs of her colleagues. She maintained an open-door policy as chief, available in person, by phone, or by text. She always made time to hear problems, complaints, or concerns and treated each as if it was as important to her (often not) as it was to the caller. Whenever possible, the chief would find a solution, or propose a path to a solution, for the problem presented. She did so with grace and compassion and earned the undying respect of her colleagues.
The coronavirus pandemic struck the United States in the winter of 2020, impacting the courts as it did all of American society. In March 2020, Chief Justice Fabricant returned from an overseas vacation to discover that the courts were about to suspend in-court proceedings and essentially shut down day-to-day operations. As noted in her Preface to the 150th Reflections publication, the times called for coordination and cooperation to ensure access to justice in a pandemic setting, and Chief Justice Fabricant spearheaded that effort. In addition to developing systems for virtual court hearings, Chief Justice Fabricant was asked by SJC Chief Justice Ralph Gants to serve as chair of the Jury Management Advisory Committee, tasked with surveying and assessing every courthouse in the Commonwealth to determine their suitability for in-court jury trials, and developing protocols for conducting jury trials in a manner consistent with public health and public safety. The mission was breathtaking in scope but under the leadership of Chief Justice Fabricant, a series of reports issued and jury trials were able to resume.
Chief Justice Fabricant is retiring at the top of her game and her departure will be mourned by many in the Superior Court family. However, she leaves behind a legacy of honorable and steadfast service, and a court enriched by her efforts and devotion.
Hon. Jeffrey A. Locke has been a Superior Court judge since 2001. He was a state and federal prosecutor for 18 years and was Commissioner of the Department of Social Services.