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Delaware Politics: Who Will Gov. Jack Markell Appoint as Chief Justice?

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A judge, so the saying goes, is a lawyer who knows the governor. That would make the chief justice someone who knows the governor really well.

It is time to find out, because Jack Markell, the Democratic governor, has to name a new chief justice.

Myron Steele, a 25-year jurist who sat in the Delaware Supreme Court’s center seat since 2004, announced in September he was retiring on Nov. 30, and Markell is expected to nominate a replacement for Senate confirmation when the next legislative session begins in January.

Steele fit the description. Ruth Ann Minner was the governor who made him the chief justice, and they were Kent County Democrats who went way, way back together to the days Steele was the Democratic county chair and Minner was a state legislator.

Ditto for Norm Veasey, the chief justice before Steele. Veasey was the choice of Mike Castle, the Republican governor, in 1992. Veasey had never been a judge, but he was a senior partner at Richards Layton & Finger, a Wilmington law firm with a century of clout and all the right connections. The firm was usually known by its initials, “RLF,” and it was waggishly said that stood for “Republican Law Firm.”

In fact, Veasey had been Castle’s lawyer when politics took a nasty turn and an irksome lawsuit was filed against Castle and his campaign. Veasey got it thrown out.

Just because the governor wants someone to be the chief justice, it does not mean everyone else does, too.

People think elections can get bad. Ha! Getting a chief justice confirmed can be a Grinchy three-decker sauerkraut and toadstool sandwich with arsenic sauce.

This is not just any appointment, after all, not like being named to the Advisory Council on Tidal Finfisheries.

The chief justice leads the third branch of government, and it matters more here than elsewhere. Delaware’s judicial system is known far and wide for corporate law, primarily because of the storied Court of Chancery. It means prestige. It means a lucrative practice for the corporate bar. It means a mighty stream of revenue for the state.

It means a huge amount of interest in who the chief justice is.

 

 

There should never have been any doubt that Minner wanted Steele, not from the moment she took her oath as governor in 2001 and Steele, then a Supreme Court justice, was her escort afterward in the receiving line.

Still, there was a lot of sentiment in the bench and bar, as well as the General Assembly, for Randy Holland, a Republican justice who was a judicial scholar with an international reputation. Seven years later in 2011, Holland would be recognized as the best state judge in the country by the American Judicature Society.

Although Holland was as courtly and dignified as always, his advocates were not. They threw a gala tribute for him, and when Veasey had his retirement dinner, Holland was called upon to introduce him. Nothing subtle about it.

While Holland was being lionized, Steele found himself entangled in a strange ethics investigation, and it was easier to believe in fairies than to think it was a coincidence.

Steele was part of a Supreme Court panel that decided a sulfurous dispute between the ownership and tenants of a mobile home park. He instructed the ruling to be faxed to the lawyers. He assumed the fax had been sent by the time he mentioned the outcome in the course of a conversation with the winning lawyer, who represented the ownership, but it had not.

When the tenants found out the ownership knew about the ruling before it officially became public, they thought the fix was in. The uproar was fanned into a formal inquiry that lasted for eight tense days. Steele was cleared. Minner waited it out and then nominated him.

There was no cakewalk for Veasey, either, when he became the chief justice. It began with some behind-the-scenes grumbling that Castle was putting his own lawyer in charge, but then it moved on to something more perilous.

Castle was in his last year as the governor, and it seemed like all of Delaware was in on the political swap that would exchange Castle for Tom Carper, the Republican governor becoming the congressman and the Democratic congressman becoming the governor.

The state Senate was controlled by Carper’s fellow Democrats, and they sent a feeler suggesting they could stall Veasey’s nomination, if Carper wanted them to, so he could put in his own chief justice. Carper let it lie, and Veasey was confirmed.

 

 

When Markell makes his appointment for the next chief justice, it could come from the other justices, from the other courts or from the law firms. It could even come from the other party.

Delaware is the only state that requires its judiciary to be politically balanced. A Democratic governor has to appoint a fair share of Republican judges, and vice versa. With Steele’s departure, the five-member Supreme Court is left with two Democratic justices and two Republican justices, so it could conceivably go either way.

The political balance, written into the state constitution, even led to what might have been the greatest political deal of this young 21st century. Jane Brady, the Republican attorney general, was planning on running for re-election in 2006, except her Democratic opponent was going to be Beau Biden. It was big trouble. When a Republican judgeship opened in late 2005, it looked like an escape hatch.

Minner was the governor. Back-channel negotiations were commenced. If Minner put Brady on the bench, it meant Minner would be able to appoint a fellow Democrat of her own choosing to fill out the last couple of years of Brady’s term.

The deal was done. Brady became a judge. Minner named Carl Danberg, now a judge himself, as attorney general, and Beau Biden had an open race to get elected to statewide office.

Just another three-decker sauerkraut and toadstool sandwich. Hold the arsenic sauce.   

» For more from the December issue, click here. 

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