[G]ov. Peter Shumlin plans to nominate a replacement for retiring Vermont Supreme Court Justice John Dooley before leaving office early next year.
Dooley announced last week that he will not seek to stay on the court at the end of his current term, which expires March 31. He was nominated to the bench by Gov. Madeleine Kunin and has served for nearly three decades.
Shumlin spokesperson Sue Allen said in an email Tuesday that the governor plans to interview candidates and “name a successor to Justice Dooley later this fall.”
According to the statement, the governor consulted his legal counsel on the statute concerning judicial nomination. He also reached out to the chairs of the House and Senate Judiciary committees and other legislative leaders, as well as the chair of the Judicial Nominating Board.
“As it turns out, the statute and board rules are clear: When a Supreme Court justice announces they will not be a candidate for retention, the nominating board — upon notification by the governor of the vacancy — ‘shall’ initiate the process to send candidates to the governor,” Allen said.
Sen. Peg Flory, R-Rutland, who chairs the nominating board, said the outgoing governor’s decision to move forward with the process “surprised” her. However, she said, based on research into the rules of judicial retention, “it appears that the governor has the right to do what he’s doing.”
Shumlin will now send a letter to Flory notifying the board of the Supreme Court vacancy. At that point, she must post the vacancy and set a date for when applications are due.
The board is composed of 11 people: two appointees of the governor and three appointees each from the House, Senate and the Vermont bar. Flory is on the board as a member of the bar, not in her legislative capacity. Her term on the board ends in January.
The board reviews applications, interviews candidates and compiles a list from which the governor selects a name. The appointee must go through a confirmation vote by the Senate but technically can begin to serve as soon as the appointment is made, according to Flory and others. The confirmation process typically isn’t contentious in Vermont, observers said.
The selection process is a labor-intensive one to carry out in the next three months. The board is already in the process of finding candidates to fill two Superior Court vacancies.
“I’m not crazy over it. On the other hand, I know I could sit on this and give the application deadline for Jan. 1, but that doesn’t seem right,” Flory said.
Among some, Shumlin’s decision to swiftly pursue a replacement for Dooley before a new governor takes office is viewed as a political one.
A spokesperson for Republican Phil Scott’s gubernatorial campaign, Brittney Wilson, said Shumlin’s decision is influenced by the coming election.
“Clearly he thinks Phil is going to win. So, that’s a good sign from our point of view and the point of view of Vermonters who want Montpelier to focus on the economy and affordability,” Wilson said.
Wilson raised several questions about Shumlin’s plan, including when he would make the nomination and whether the current or incoming Senate would take up the confirmation.
She raised questions about the legality of Shumlin appointing someone to fill the vacancy if Dooley is not leaving the court until the next governor is in office.
“Extending Shumlin’s twisted legal logic to its conclusion, he could theoretically appoint all of the next governor’s Cabinet before leaving office — which is really absurd; would be an unprecedented and disruptive overreach of a governor; and would really call Peter Shumlin’s ethics into question, again,” Wilson said.
Elliot Bent, spokesperson for Democratic gubernatorial candidate Sue Minter’s campaign, said in an email the candidate supports Shumlin’s decision.
“If the governor has legal authority to act now, Sue believes he and the nominating committee should ensure continuity on the court,” Bent said.
Attorney Dan Richardson, former president of the Vermont Bar Association, said he was surprised by the governor’s timing.
“Anything is possible,” Richardson said.
He said he can think of a plausible list of about 20 people who could be interested in applying for the Supreme Court vacancy. It’s possible, he said, that the administration has a candidate in mind already.
“This is politics,” Richardson said.
