Posted: Feb. 24, 2015
MARKELL GOES FIVE-FOR-FIVE
By Celia Cohen
Jack Markell did not set a record.
Now in his seventh year as the Democratic governor, Markell just made his fifth nomination to the Delaware Supreme Court when he set his sights on C.J. Seitz.
It means there will not be a seat on the state's highest bench he has not filled, either through four appointments or one reappointment. It sounds like it ought to be a record for any single governor, and maybe in one way it is.
Certainly Markell should get points for degree of difficulty for completing this gubernatorial quintuple axel in a little more than a year with Seitz, a respected corporate practitioner who shares one of the most famous names in the state's judicial history.
Seitz's full name is Collins Jacques Seitz Jr. after his father, who delivered one of the most significant decisions in the entire country.
Collins Seitz challenged the doctrine of "separate but equal" in 1952 when he ruled as chancellor against the segregation of the state's schools, an opinion that laid the groundwork for the U.S. Supreme Court's own landmark case making school integration the law of the land two years later in Brown v. Board.
Think of it this way. C.J. is to Collins as Beau is to Joe.
Like Beau Biden, who did something his father-the-senator-and-vice-president never did by getting elected as attorney general, C.J.Seitz as a Supreme Court justice would go where his father never did. Collins Seitz, who died in 1998, was a vice chancellor and a chancellor on the Court of Chancery and a judge on the U.S. 3rd Circuit Court of Appeals.
If C.J. Seitz is confirmed by the state Senate, he would be the 25th member to sit on the Supreme Court since its modern version was created in 1951, and Markell would be responsible for a fifth of it.
Before 1951, appeals were heard by a makeshift court of "leftover judges" who had not been involved in the case. It was colleagues judging colleagues, and it was bad form. Delaware was the last state to cling to it, primarily because it was cheaper.
Not very surprisingly, the governor who was around for the creation of the separate Supreme Court was the only one to make more appointments than Markell.
Bert Carvel, the Democratic governor back then, put six people on the court as justices or chief justices -- and he actually made a total of eight appointments by elevating some of his justices to chief justice -- but he had some advantages Markell did not.
For one thing, the court in those days had only three seats -- it was not expanded to five until 1978 -- and some of those early members kept coming off the court before their 12-year terms were up.
For another, Carvel is the only governor to serve split terms. He won his first term in 1948, then lost to Caleb Boggs, a Republican, in 1952, then waited Boggs out and got elected again in 1960.
This means Carvel was back in office to reappoint some of the people he named in the first place. It also let him set a record for appointing three chief justices, or is it chiefs justice?
Maybe Carvel's record should come with an asterisk.
Carvel and Markell stand in contrast to Charles Terry, a Democratic governor, and Russell Peterson, a Republican governor, both one-termers whose timing was such they never got to make a single Supreme Court appointment. This was supremely ironic for Terry, who was the chief justice before he came off the bench to run for governor in 1964.
Whatever Carvel's legacy is, Markell is the only governor to people an entire five-member court.
That is a record that ought to last, but who knows? Maybe another governor, like this one, will have to replace a Supreme Court decamping almost en masse.
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