Court watchers await Douglas’ nominee

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(Host) This summer has been an exciting one for court watchers like Commentator Cheryl Hanna. She’s here to talk about what’s been going on.

(Hanna) While the United States Supreme Court was busy handing down some landmark decisions recently, there was some equally interesting action, or should I say non-action, going on at the Vermont Supreme Court. And it could affect Vermonters in more significant ways than we may realize.

Earlier this year, Justice Morse resigned from the bench to head the Department of Social and Rehabilitative Services, giving Governor Douglas the rare chance to appoint a Supreme Court justice in his first term. To get appointed to the bench, lawyers must first apply to the judicial nominating committee, which is made up of members from the House and the Senate, the Bar Association, and the Governor’s office. The committee then screens the candidates and sends up names up to the governor. Once the governor picks among the names, the Senate confirms. This procedure was passed in 1974 to ensure that judicial nominations weren’t political, but based on merit.

More than thirty lawyers and judges applied for Justice Morse’s seat, and six names were passed on to Governor Douglas. Are all six qualified? Absolutely! Did the Governor like any of them? Apparently not. So Douglas told the judicial nominating committee that he wanted to re-open the process, claiming that the list was too limited. And this has many of us court watchers speculating about what’s going on.

Here’s what I think: Even though all six were more than qualified, the governor has not only the right, but the responsibility, to ensure that the best legal mind fills the job. If he honestly believes that the committee cut people from the list because of politics rather than merit, he should force it to start over. On the other hand, it seems to me that the governor isn’t being entirely candid about the process himself.

The real question is: who’s he hoping will make the list? Someone who’s more conservative than the current members of the court? Someone who holds a particular legal philosophy? Someone who’s more sympathetic to business and less so to individual rights? Or maybe he thinks it’s finally time to have some minority representation on the bench. I think the governor ought to be willing to engage in a public dialogue about the kind of person he thinks will best uphold Vermont’s democratic traditions.

And finally – why should even the non-court watchers out there care? Because, ultimately, it’s the Supreme Court that upholds the Vermont Constitution, which often affects our daily lives even more than the U.S. Constitution does.

This is Cheryl Hanna.

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

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