Posted: Nov. 10, 2014

JUDICIAL NOTEBOOK

By Celia Cohen
Grapevine Political Writer

The Second Memorial Carolyn Berger Special Session is now in the works.

Berger was a justice scorned, and she is making it stick.

When she was passed over for chief justice after 20 years on the Delaware Supreme Court, she left, her resignation timed to force the state Senate back to Dover to vote on a replacement in between the ending of the last session on June 30 and the convening of the next one on Jan. 13.

The First Memorial Carolyn Berger Special Session met about a month ago, as the state senators trekked to Legislative Hall during the heart of the campaign season, about as unpopular a time as there could be, to put Jim Vaughn Jr. on the state's highest court.

Vaughn's confirmation led to new complications. His elevation opened up his former judicial posting as the president judge of the Superior Court, and so the constitutional requirement for the governor to fill court vacancies within 60 days struck again.

The Second Memorial Carolyn Berger Special Session had to be.

It is expected to be held on Dec. 16, in the flurry of the holiday season, more timing the state senators could do without.

What is still lacking is a nominee, but one is on the way.

The list of the names to be considered for a new president judge is said to have gone to Jack Markell, the Democratic governor, from his Judicial Nominating Commission, which is responsible for screening the applications.

The candidates, all on the Superior Court now, are said to be: Bill Carpenter, a judge since 1993; Jan Jurden, a judge since 2001; and Eric Davis, a judge on this court since 2012 with two years earlier on the Court of Common Pleas.

The nomination process is supposed to be confidential, but nothing in a state as small as Delaware stays secret for long. Still, all of the candidates did their part by either declining comment or making themselves unavailable.  

Jurden and Davis are Democrats, and Carpenter is a Republican. Because of the Superior Court's current makeup and the constitutional requirement for political balance in the judiciary, Markell can appoint either a fellow Democrat or a Republican judge already sitting on the court.

The Second Memorial Carolyn Berger Special Session could also turn into something else. Yet another Skadden Reunion.

Davis used to practice law at Skadden, the international behemoth that has a Wilmington office. Markell has already appointed so many of its alumni to the bench, Skadden is turning into the law firm that ate the judiciary.

Leo Strine Jr., the new chief justice, practiced in his early years at Skadden, and so did Andy Bouchard, the new chancellor who replaced Strine on the Court of Chancery. Karen Valihura, the new justice, went directly onto the Supreme Court from Skadden.   

Not to mention Mike Barlow, the governor's chief of staff, was also at Skadden. Oh, and so was Berger, in whose name the state Senate meets.

No matter which judge is promoted to president judge, the merry-go-round of judicial appointments will keep on spinning, because there will be another derivative opening.

That vacancy, at least, will not have to be filled before the legislature resumes, so there will be no call for a Third Memorial Carolyn Berger Special Session.

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There will not be a Henry duPont Ridgely Memorial Special Session, either.

Ridgely, a justice since 2004, notified the governor late last week he planned to leave the Supreme Court on Jan. 15, and he made a point about the date in his retirement letter, writing, "This timing will not require a special session of the Senate for the confirmation of my successor."

Nothing less should have been expected from a gentleman jurist who once worked as an attorney for the state Senate and learned its ways, before he went on to spend almost 30 years on the bench as a Superior Court judge and president judge and now justice.

With Ridgely's departure, Markell will have appointed or reappointed the entire five-member Supreme Court, four of them coming over the last year.

As a Republican, Ridgely can be replaced by someone from either party, because his departure will leave the court split evenly between the Democrats (Strine and Vaughn) and the Republicans (Randy Holland and Valihura.)

Fittingly enough, Ridgely's letter reached the governor's office the day after Return Day, the official conclusion to the election season and the unofficial pivot to the next one.

There have been so many new judgeships lately, the perpetual political campaign has nothing on the perpetual judicial one.

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