Updated at 5:08 p.m.
MONTPELIER — Lawmakers narrowly confirmed Michael Drescher’s seat on the Vermont Supreme Court after Republican Lt. Gov. John Rodgers cast a rare tie-breaking vote in the divided chamber Tuesday.
The contentious vote on Drescher came after senators weighed their ethical questions in considering his nomination. Many feared Drescher would not uphold the rights of Vermonters because he spent the last year serving as Vermont’s top federal prosecutor under the Trump administration. In that role, he represented the federal government in cases involving the detentions of students Mohsen Mahdawi and Rümeysa Öztürk.
Rodgers’ vote marked the first time a lieutenant governor broke a tie on a confirmation vote in more than 30 years, according to John Bloomer, secretary of the Senate.
Underlying the controversy was a question summed up by Sen. Nader Hashim, D-Windham: “At what point is the argument of ‘I was just doing my job’ no longer acceptable?”
Senators’ deliberations and vote on Drescher came after they confirmed Christina Nolan, former top federal prosecutor in Vermont during President Donald Trump’s first term, to the state’s highest court after little debate, voting 23-7.
Both Drescher and Nolan were tapped by Gov. Phil Scott last month to serve on the Vermont Supreme Court. Lawmakers in the Senate Judiciary Committee then spent weeks interrogating Drescher and Nolan’s respective records before the prospective justices were considered on the floor.
After earning senators’ support, both candidates are set to serve lifetime appointments, though their seats are up for review by a committee every six years.
After the vote, Scott commended senators who voted in line with his nominees.
“Vermonters expect our Supreme Court Justices to be well-qualified, act with integrity, have good character and, most importantly, not allow outside politics to interfere with the confirmation process of a well-qualified candidate,” Scott said in a statement. “And, as elected officials, we’re expected to do the same — stand up for what’s right, regardless of the pressure, because that’s what Vermonters expect us to do.”
Courage or cowardice?
Among senators, Drescher became the subject of heated controversy due to his role representing the Trump administration in Mahdawi’s legal case. Mahdawi, a Palestinian student activist at Columbia University who vocally opposed Israel’s war in Gaza, was arrested by immigration authorities in Colchester in April.
The national attention Mahdawi’s case garnered, and the legal precedent it set, heightened senators’ scrutiny of Drescher. Some said they received hundreds of emails about his candidacy.
Mahdawi’s lawyers filed a civil lawsuit against the federal government arguing his detention was unlawful. And Drescher represented the federal government in the case, arguing in court that Mahdawi should remain detained.
Last week a vote in the judiciary committee to recommend Drescher failed 2-3, with only the Republicans in the committee voting in his favor. The other three members of the committee voted against recommending him.
On his candidacy, the committee voted to not present a recommendation, rather than explicitly not recommending him.
On the Senate floor Tuesday the committee’s lack of a recommendation prompted a motion from Sen. Alison Clarkson, D-Windsor, to send Drescher’s confirmation back to the judiciary committee. Then, Sen. Kesha Ram Hinsdale, D-Chittenden Southeast, interjected and successfully moved for senators to take a 20-minute break to mull over the decision.
When they came back to the floor, senators offered impassioned speeches for and against Drescher’s confirmation.
Sen. Becca White, D-Windsor, said she couldn’t support Drescher’s appointment considering the gravity of Mahdawi’s case. His detention sent shockwaves through her community in the Upper Valley, where Mahdawi is a resident, she said. White described Drescher’s arguments in court as “almost morose” and said even if Drescher lacked a political affinity for Trump, he still decided to represent his agenda in front of a judge.
The two Democrats from Bennington, Sen. Seth Bongartz and Sen. Rob Plunkett, voted out of line with their party in favor of supporting Drescher, joining Senate Republicans.
Bongartz said Drescher shouldn’t be “hung out to dry” because his job required him to represent two highly controversial cases. To him, Drescher’s ability to represent those cases showed courage and integrity.
Plunkett, also a prosecutor, said while he originally wanted to vote against Drescher’s appointment, he changed his mind after careful consideration.
“We strive to have a judiciary that stands outside the political fray,” Plunkett said, adding that he wanted to extend the same values to the appointment process.
While Plunkett condemned the arrests of Mahdawi and Öztürk, he said Drescher was well-qualified and had integrity.
Plunkett described Drescher as “a government lawyer who refuses to mislead the court, even when under pressure.” People like him protect the rule of law when it’s under attack, Plunkett said.
Other senators raised skepticism with Drescher’s assertion that he was only doing what he had to. Hinsdale and Sen. Tanya Vyhovsky, P/D-Chittenden Central, both pointed out Drescher’s decision to attend a press conference in Florida this fall with U.S. Attorney General Pam Bondi to talk about his prosecution of human trafficking cases. Both senators said Drescher’s press appearance was in bad taste and part of the reason they would vote no.
When a roll call vote yielded a 15-15 stalemate, Rodgers cast a tie-breaking vote in favor of Drescher’s confirmation.
After the vote, Rodgers said the tie-breaker was a move he was comfortable making.
“I stand by my decision. It’s based in knowledge and the fact that I believe this guy is going to be a truly great justice,” Rodgers said.
Rodgers said he doesn’t believe Drescher will undermine public trust in the court and that those who criticize Drescher don’t have a thorough understanding of his role in the cases.
Proponents of Drescher have emphasized the fact that Drescher wasn’t pressing charges against Mahdawi and Öztürk, rather he was responding to a civil lawsuit their lawyers filed.
The vote on Nolan
Earlier that morning, before senators began discussing Drescher, Hashim told the chamber why Nolan received unanimous support from the Senate Judiciary Committee, which he chairs.
“Despite my initial hesitations I was both pleasantly and positively surprised by her as a candidate and now as a nominee,” Hashim said on the floor, also discussing his time on the board that recommended candidates to the governor.
Nolan, a onetime Republican candidate for U.S. Senate, has repeatedly told senators in committee that she’s ready to put her political past behind her and act as a “bulwark” against government oversteps.
Nolan served as the top federal prosecutor in Vermont under Trump’s first administration, winning a unanimous confirmation from the U.S. Senate following her recommendation for the role by Scott and U.S. Sen. Peter Welch, D-Vt.
During her time as a federal prosecutor, Nolan prosecuted the notorious EB-5 scandal at Jay Peak resort in the mid-2010s and played a role in a federal prosecutors’ $8 billion legal settlement with Purdue Pharma in 2020.
Though Nolan admitted to accidentally bringing a gun to a county courthouse in Vermont, Senators in committee said they thought she owned up to the mistake by completing gun safety courses along with a pre-charge diversion program.
