Posted: June 9, 2014
IS THE SUPREME COURT BURNING?
By Celia Cohen
Maybe the only thing tipping faster than I-495 is the Delaware Supreme Court.
Mere hours after the governor's office announced on Friday afternoon it was restoring the court to its full complement by appointing Karen Valihura, it was blindsided with a new vacancy.
Carolyn Berger kept the court spinning in a not-so-merry-go-round of justices coming and going by giving notice that she would be retiring as of Sept. 1.
Her departure was such a stunner, since her current 12-year term is not up until 2018, the governor's office did not regroup to make it public until Monday.
It is an end coming with a bang, not a whimper, to a judicial career that somehow managed to be both historic and overshadowed with Berger as the woman lonely at the top.
For 30 years she was the only one to break the gender barrier, as she sat for the last 20 years as a justice on the Supreme Court, the state's highest bench, and for an earlier 10 years as a vice chancellor on the Court of Chancery, the state's most storied forum with its focus on corporate law.
The U.S. Supreme Court evolved with O'Connor, Ginsburg, Sotomayor and Kagan, but here it was Berger and only Berger on the tandem of courts at the apex of the state judicial system.
If her tenure was isolated and understated, her departure is not. It is about as subtle as a sucker punch, which it might be.
The timing, in a word, is downright injudicious. It is just what Jack Markell, the Democratic governor who makes the court appointments, and the state Senate, which confirms them, did not want.
Because the state constitution requires the vacancy to be filled within 60 days, there will have to be a special session scheduled after the General Assembly ends on June 30, and it will have to be held in the heart of the campaign season, sometime between Labor Day on Sept. 1 and Election Day on Nov. 4, with Primary Day falling in the middle on Sept. 9.
The governor and the senators thought they had dodged a special session. It looked like they would have to hold one when Jack Jacobs decided to retire from the Supreme Court as of July 4, but he agreed to back up the date so his replacement could be confirmed before the end of June.
Valihura was tapped. Order appeared to be restored. Berger upended it.
Stability has become elusive for a court that was known for it. The membership did not change for nine years -- with Myron Steele as the chief justice along with Randy Holland, Carolyn Berger, Jack Jacobs and Henry duPont Ridgely as the justices -- until Steele retired late last year.
Now Steele is gone, Jacobs and Berger are going, and there is a widespread assumption that Ridgely also plans to retire before the year is out.
What apparently is not changing is the Supreme Court's crucial double-team with the Court of Chancery on corporate law, not with Leo Strine Jr., the new chief justice, elevated from chancellor and Valihura, as Jacobs' designated replacement, coming from a corporate law practice at Skadden, a global giant of a firm with a Wilmington office.
Not that it should be a surprise that Skadden is birthing another judge. Strine and Andy Bouchard, the replacement for chancellor, were also at Skadden at some point in their legal careers, as was Berger. Ditto for Mike Barlow, the counsel to the governor.
In a state where the Democrats are so dominant there is essentially a one-party political system, it appears to be getting something of a one-firm court system, too.
Berger's retirement also keeps the Supreme Court in a state of political flux.
The court is required by the state constitution to be balanced politically. As of this moment, it has three Democrats (Strine, Berger and Jacobs) and two Republicans (Holland and Ridgely.) It would tip Republican with Valihura, but it could flip back if Ridgely retires and gets replaced by a Democrat.
Of course, Berger's departure looks to be shrinking the number of women on the Supreme Court and the Court of Chancery down to one again.
What a ferment it all is. Whether Berger is leaving in a huff over something, like Strine's arrival or Valihura's nomination, or simply got the 30-year-itch to leave, it is a mystery, because she did not make herself available to be asked. It is a burning question.