[T]he Senate minority leader has joined a court case challenging whether outgoing Gov. Peter Shumlin has the right to appoint a new Supreme Court justice.
The state’s high court granted a motion Wednesday to let Sen. Joe Benning, R-Caledonia, join a case House Minority Leader Don Turner, R-Milton, brought last week.
Turner disputes Shumlin’s authority to appoint a successor to Justice John Dooley, who plans to leave the bench at the end of March. Shumlin, a Democrat, leaves office next week.
The court issued an order last Friday blocking Shumlin from naming a new justice until the matter is resolved. Both parties must file arguments with the court by Friday, and a hearing is scheduled for Tuesday.
Benning said he petitioned to join the case after Turner’s attorneys approached him. Turner must demonstrate that he has a sufficient interest in the case to bring the challenge. As a member of the House, Turner does not have a role in the judicial appointment process, so he is coming forward as a citizen, Benning said.
“There is some question in this type of legal proceeding whether that would be enough to pass muster,” Benning said.
Members of the Senate confirm the governor’s judicial appointees. Because of that role, Benning could fortify the argument that the challengers have a right to intercede.
“I have a stronger case to make in that regard,” Benning said.
Benning said that based on his reading of the statutes, he believes it is “absolutely” Republican Gov.-elect Phil Scott’s responsibility to fill Dooley’s seat.
“The office doesn’t become vacant until the body currently in it leaves,” Benning said.
But Shumlin remained resolute Wednesday in his assertion that it is within his authority to appoint a successor to the retiring judge.
“I’m following Vermont law,” Shumlin said. “If you read the statute it is very clear.”
Speaking after he swore in two new Superior Court judges, Shumlin noted that Scott did not intend to challenge his Supreme Court appointment. Shumlin also pointed to the fact that the Judicial Nominating Board, headed by Sen. Peg Flory, R-Rutland, who is on the board in her capacity as an attorney, complied with his request to put together a list of candidates.
“I’m puzzled as to why we are here at this moment questioning it,” Shumlin said. “But I’m looking forward to the Supreme Court making a judgment soon, and I fully expect I’ll be making an appointment to the court before I leave.”
The Judicial Nominating Board sent a list of six candidates to fill the post to Shumlin earlier this month. He said he interviewed all the candidates within 48 hours of receiving the names.
“I’m blessed that I have numerous great candidates to choose from,” he said.
He will wait until after the court issues a decision to pick an appointee, he said.
“This isn’t Washington, and that’s why I’m a little puzzled by the filing from the Republican minority leader of the House,” Shumlin said.
(VTDigger’s Jasper Craven contributed to this report.)