Burgess appointment

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(HOST) Governor Jim Douglas recently appointed trial court judge Brian Burgess to the Vermont Supreme Court. Commentator Cheryl Hanna shares her thoughts on what this might mean for the future of Vermont.

(HANNA) When Governor Jim Douglas announced that trial court judge Brian Burgess would become the Court’s newest member, I sensed a collective sigh of relief among members the bar.

Burgess is in no way considered an ideologue. During his 12 years on the trial court, and most recently as chief administrative judge, Burgess earned a reputation for being a thoughtful and prac- tical judge. By most accounts, he’s considered a positive addition to the Court and is expected to be easily confirmed by the Senate in January.

I find two things noteworthy about Burgess’ appointment. The first is that, despite getting to appoint two justices in three years, Gov- ernor Douglas has resisted appointing ideologues to the bench. Like President Bush, Douglas has voiced concern about “activist judges”, yet neither Chief Justice Paul Rieber nor Burgess is con- sidered a strict constructionist along the lines of Supreme Court Justices Scalia and Thomas.

Indeed, neither Rieber nor Burgess is considered a strong legal theorist, leaving some to argue that, although the Court doesn’t need any ideologues, it could benefit from more intellectual depth.

In Vermont, the Judicial Nominating Board first screens nominees before sending names to the governor, so it’s unlikely that the Board would send up someone whose views are extreme. Never- theless, Douglas deserves credit for putting the integrity of the Court above any purely partisan agenda.

The second thing I find noteworthy is that Vermonters seem rela- tively uninterested in Court appointments. There was no organized lobbying effort to influence the governor’s decision, very little dis- cussion of potential nominees and their judicial philosophies and almost no press coverage of Burgess beyond the governor’s own press release.

Not that anyone wants to see a judicial blood bath in Vermont like the kind we can expect to see over Sandra Day O’Connor’s re- placement to the United States Supreme Court. But Vermonters should take more of an active interest in the Vermont Supreme Court. We should, at least, know our judges and what their judicial philosophies are.

Our Court has more power to influence our lives than does the United States Supreme Court. School financing, environmental regulations, reproductive freedom and defendants’ rights all fall under our Court’s jurisdiction. And our justices will become increasingly powerful as federal courts continue to grant more rights to the states to decide these issues for themselves.

It’s vital that the public be engaged – not just when judges are up for confirmation or retention, or when a controversial case is de- cided – but throughout the year. I know it can be uncomfortable for judges to have their decisions and their biography publicly dis- cussed, but I trust they understand the importance of a commun- ity dialogue on the role of the Court in a democracy.

After all, it’s our Court, and our lives, that are at stake.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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