Posted: Nov. 14, 2013
LOOKING FOR A LEAD FOR THE SUPREMES
By Celia Cohen
The decision is not about whether the applicants for chief justice are up to running the Supreme Court and the rest of the Delaware judiciary. They are.
The four judges with an interest in taking over from Myron Steele, the chief justice who is retiring at the end of the month, have collectively been confirmed 10 times already by the state Senate.
Carolyn Berger, three times as justice and vice chancellor. Leo Strine Jr., three times as chancellor and vice chancellor. Jim Vaughn Jr., twice as Superior Court president judge and Superior Court judge. Jan Jurden, twice as Superior Court judge.
Their names are not supposed to be public. They are supposed to be kept confidential while the Judicial Nominating Commission screens them and recommends candidates to the governor, but there is no way to keep a secret when the state is this small and the stakes are this high.
People are not even pretending not to know, and that includes the senators who expect the nomination from Jack Markell, the Democratic governor, to be ready for them when they return to Dover in January for the 2014 legislative session.
"I think it's a really strong field of applicants. Any one of them could be confirmed, I believe. I really hope that the Judicial Nominating Commission sends all four names to the governor," said Patti Blevins, the Senate's Democratic president pro tem.
If confirmation does not look like a problem, it means other considerations, more subjective and political, can be taken into account in deciding who will have the greatest say in shaping the court system for a term that lasts 12 years.
The biggest political factor already has been dispensed with. All of the applicants are Democrats, even though the state constitution requires the five-member court to be balanced politically, and the departure of Steele, a Democrat, leaves it evenly split to go either way. The Republican self-abdication is hardly a surprise, not when the governor and the Senate majority are Democratic.
Not that all Republicans would have been automatically out of the running. There was a lot of sentiment among the legislature, bench and bar for Randy Holland, a Republican justice who won an award for the best state judge in the country.
"I would rather see my favorite Republican named. Everyone wants Randy," quipped Gary Simpson, the Senate's Republican minority leader, who nevertheless acknowledged, "It sounds like a pretty good group of individuals applied."
Three of the applicants have Democratic politics in their background, all but Berger. Strine was the counsel to Tom Carper, when the U.S. senator was a Democratic governor. Vaughn is the son of the late Jim Vaughn Sr., a Democratic state senator. Jurden was an official for the New Castle County Democratic Party.
Naturally the eternal question of Delaware politics has also arisen. That would be geography.
Tradition says the members of the Supreme Court should be drawn from all three counties. With Steele gone, however, there will be nobody to represent Kent County, now that it seems Henry duPont Ridgely, who went on as a Kent County justice, has moved to the beach in Sussex County.
"We'll halfway claim him, anyway," cracked Simpson, a Sussex Countian.
It leaves Berger and Jack Jacobs from New Castle County, Holland and Ridgely from Sussex, and Vaughn as the only applicant who can restore Kent County to the court.
There is also a lot of talk about the need to preserve the state as the premier forum for corporate law, a reputation that arises from the Court of Chancery in tandem with the Supreme Court. It would appear to point at either Strine or Berger, the two with Chancery on their resume, although not necessarily so.
"They're all highly qualified, and I think Delaware will do well under any of them to continue to protect us as having one of the best courts in the country," said Margaret Rose Henry, the Democratic senator who chairs the Judiciary Committee.
There is yet more to consider. Administrative experience? Strine and Vaughn are both in charge of a court. Generational change? Strine or Jurden would herald it. Better gender representation in a judiciary that has never had a woman as the presiding judge of a major court? That would be Berger or Jurden, who is also gay.
Then there is that elusive concept of "judicial temperament." In this context it has become code for Strine, who can be a bludgeon and is also known for impolitic instances of Beavis-and-Butt-Head-like humor, as in the time he described lawyers who were celebrating a court victory for a company called Airgas as "Airgasmic."
Anything goes in judicial appointments, and it is ironic that both Strine and Vaughn are up for chief justice, because together they are evidence of it. Strine would not be a judge without Vaughn, and Vaughn would not be a judge without Strine.
They are part of one of the greatest deals in the history of the Delaware judiciary. It goes back 15 years to a day when Strine was the gubernatorial counsel to Carper and Vaughn was a Kent County lawyer with a father in the state Senate.
Carper wanted to make Strine a vice chancellor, but a few too many senators found Strine to be insufferable. "Maybe the problem is some of us have gotten to know you very well," said Tom Sharp, who was the Democratic pro tem.
The votes were rounded up the old-fashioned way. Carper did some favors. At the same time he nominated Strine, he also nominated Vaughn as a Superior Court judge and the nephew of another senator as a Family Court commissioner, and presto! All of them were confirmed.
The moral of the story is, it really does not matter why the governor makes a judicial appointment -- for chief justice or otherwise. A robe is a robe is a robe.