Gov. Phil Scott said earlier this month he was considering asking the board to open applications again for candidates to succeed Justice John Dooley, who announced last year that he would leave the bench at the end of his term in April.
Initially, departing Gov. Peter Shumlin intended to name a replacement for Dooley. Shumlin asked the Judicial Nominating Board, composed of legislators and members of Vermont’s legal community, to begin the vetting process.
The board reviewed the applications and submitted a list of six finalists to Shumlin in mid-December.
However, the state Supreme Court ruled, in a case brought by two Republican lawmakers, that Shumlin didn’t have the authority to name Dooley’s successor because the vacancy hadn’t occurred yet.
Johnson told the board Tuesday that the governor is looking to afford an opportunity to apply to “those candidates that may have been discouraged from participating because of the constitutional question which arose during the last nominating process, which turned out to be valid.”
She said there is precedent for asking the board to reopen a search. Gov. Howard Dean returned to the board and asked for a new list in the 1990s to fill a vacancy on the court. Gov. Jim Douglas also asked the board to come up with new names when filling a high court vacancy, she said.
Burlington-based attorney John Evers, who has been on the board for two years, sent a memo to the other members of the panel last week arguing against reopening applications for the high court seat.
Evers said Tuesday that throughout the challenge to Shumlin’s authority to appoint Dooley’s successor, all parties agreed the Judicial Nominating Board completed its part of the process appropriately. He argues that the board does not have the authority under statute or the Vermont Constitution to take new applicants for the position.
The board also heard from Sen. Joe Benning, R-Caledonia, who was one of those challenging Shumlin’s appointment authority, and Chief Assistant Attorney General Bill Griffin. It then voted to reopen applications for the pending vacancy.
Sen. John Rodgers, D-Essex-Orleans, said he supported reopening the process because the situation is “out of the norm.”
“I truly believe that if there’s anyone out there who didn’t apply because of the circumstances of our prior board meeting, it is unfair to them to not give them a chance,” Rodgers said.
The motion to reopen applications passed with eight in favor, three opposed.
The panel is expected to meet and review new applications within a few weeks. Some members of the committee will reach the end of their terms at the end of the month. Board Chair Peg Flory, a Rutland attorney who is also a Republican senator, is also near the end of her term.
Scott will have the opportunity to name two new members to the nominating panel.
