Posted: Oct. 25, 2012
By Celia Cohen
The present governor but the next state Senate will be responsible for making new judges.
It is an unavoidable quirk of the Delaware political calendar.
Among the judicial openings, there will be three judgeships on the Superior Court, all going to Democrats because of the constitutional requirement for political balance in the court system.
The recommendations for candidates have been prepared for the governor by the Judicial Nominating Commission, and although the list is supposed to be confidential, it never seems to stay that way. The names are said to be:
Charlie Butler, the chief deputy attorney general; Eric Davis, a judge on the Court of Common Pleas; Ralph "Dirk" Durstein III, a deputy attorney general; Francis "Pete" Jones Jr., a partner at Morris James; Mike McTaggart, a deputy attorney general; Vivian Rapposelli, the Cabinet secretary for children's services; and Natalie Wolf, a partner at Young Conaway Stargatt & Taylor.
All of them either declined comment or did not make themselves available, just what dutiful candidates are supposed to do.
Altogether there are eight judgeships to be considered for various courts, and they cannot wait. They will have to be decided before the year is out because of expiring terms and constitutional limits on the amount of time for sitting judges to hold over.
Never mind there happens to be an election coming, not to mention the governor and the entire Senate are on the ballot.
Jack Markell, the Democratic governor, will be making the nominations, because no matter what happens at the polls, his term lasts until January. Not that the election is expected to make a difference in his status, anyway.
The Senate is another situation. Once the election is over, so is the old General Assembly. Normally the next one convenes in January, but if there is a need for a special session, as in this case, it is the new senators who will be going to Dover to vote on the judicial confirmations.
The latest thinking is the special session will be scheduled for late November or early December.
The three Democratic openings on the Superior Court are due to a new judgeship as well as the departures of Peggy Ableman, who is retiring, and Joe Slights, who is returning to private practice.
Three judgeships. Seven candidates. The odds could be worse.
# # #
In another quirk of the political calendar, the next New Castle County executive might be taking office a lot sooner than people would be inclined to think.
Under normal circumstances, a new county executive is installed in January, but these are not normal circumstances, because right now the county has an unelected executive.
Paul Clark moved up from County Council president almost two years ago, and although he tried to become an elected executive with his own four-year term, he did not survive a Democratic primary, so his days in office are numbered. The question is, by how much?
There is a very confusing provision in the law that can be read to say the next county executive takes office on the first Tuesday after the election, not in January, to replace an unelected executive.
This would mean Clark is out on Tuesday, Nov. 13.
Chances are good Clark would be giving way to Tom Gordon, who won the Democratic primary, and not to Mark Blake, the Republican candidate.
While Clark was never elected county executive, Gordon is trying to be the first to win two terms, take a mandatory time out, and get a third. Blake is manfully trying to become the first Republican elected to the post since 1984, despite a registration stacked against him, if only the voters would rather not bring back Gordon, whose administration ended amid a federal investigation.
Some lawyers are reading the state code (Title 9, Section 1114, for the legal types out there) to say an unelected executive has to go in November. Others say it only happens that way if an unelected executive assumes office before a mid-term election, so Clark does get to stay until January.
Greg Wilson, the county attorney, is convinced Clark has until January. "It says very clearly he shall fill the remainder of the term," Wilson said.
None of this would be brewing if Christine O'Donnell had not made Mike Castle disappear in a Republican primary and turned Chris Coons from a Democratic county executive to a U.S. senator. And she says she is not a witch?
Actually, the county has been in this situation before, and the unelected executive did leave early.
Henry Folsom was a Republican who moved up from council president in 1976, because Mel Slawik, the Democratic executive, was convicted in a corruption probe and eventually went to jail.
It was an election year. As the voting approached and it became increasingly clear that Mary Jornlin, the Republican candidate, was going to win, her advisers belatedly took a look at the law and interpreted it to their considerable surprise to mean she had to take office posthaste. She did, too.
It led Jornlin to telephone Don Kirtley, a Republican Party official who had talked her into running, and ask a famous question.
"OK, genius, what do we do now?"
This might be a good time to ask it again.