Earning a Judgeship is Not Without Challenges

Although Delaware does it differently than most states, the sought-after appointments often involve wheeling and dealing.

Do not be fooled by the black robes. Do not fall for the call for all to rise when judges come into court. Getting a judgeship can be a messy thing. Old Otto von Bismarck did not go far enough as the wit credited with delivering the droll observation about what people should never watch. Making laws. Making sausages. Also, making judges. It is true even here, and Delaware probably has the sanest method in the entire United States of America for selecting the members of its judicial branch of government. Delaware does not elect its judges, as a lot of other states do. It leaves the hucksterism and the unsavory taint of campaign contributions to the executive and legislative branches, where it sadly belongs. Nor does Delaware mimic the rugged partisanship and gamesmanship that regularly afflict the federal government, no matter how high-minded it sounds to have the president appoint judges with the advice and consent of the Senate.

The governor here appoints the judges, and the state Senate confirms them, but what sets Delaware apart from every place else is that it has to have political balance in the judiciary. There is no way around it, because it is written into the state constitution. As if that could eliminate political chicanery. Ha! Even without elections, even without partisan gamesmanship, there is still the deal. This is not to say that deal-making necessarily leads to bad judges. (Nor is it to say it does not.) One of Delaware’s greatest judges of all time would not have been confirmed without, ahem, a little creativity. That would be Collins Seitz, the judge who ordered the integration of the University of Delaware and wrote the opinion that became the basis for the U.S. Supreme Court to outlaw school segregation in 1954 in Brown v. Board, one of the most famous cases ever. Bert Carvel, the Democratic governor back then, wanted to promote Seitz from vice chancellor to chancellor on the famed Court of Chancery, best known as the forum-of-choice for business law, but a lot of conservative-minded state senators wanted nothing to do with Seitz.

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As the story goes, Carvel had to promise to pave some dirt roads to round up enough votes. It is hard to think how Seitz could have been confirmed otherwise, not when one state senator who refused to vote “yes” told Seitz bluntly, “I didn’t oppose you because you’re a Catholic, but because of your radical views.” Those were the days. Governors have always taken care of their own when it comes to judgeships. Mike Castle, a Republican governor, made a chief justice out of Norman Veasey, a distinguished corporate attorney, to be sure, but also his campaign lawyer. Jack Markell, as the Democratic governor, has found places on the bench for a cabinet secretary or two. Rarely does a judicial deal rise to the truly legendary, but there was one. It had complexity. It had audacity. It had remarkable staying power. It went down about 16 years ago, and it begat the state Supreme Court of today.

It was the deal that keeps on giving. The impulse behind it was straight-forward enough. Tom Carper, the senator who was then the Democratic governor, wanted an opening for a vice chancellor to go to his legal counsel. This was not easily done. The legal counsel was Leo Strine Jr. He had a personality that did not suffer fools gladly, yet his job required him to work with the state Senate. It was not a good mix. A lot of state senators were looking at Strine’s nomination as payback time. There was only one thing to do. Deal! The key to it was a Superior Court judgeship for Jim Vaughn Jr., the namesake son of a Democratic state senator. A lesser piece was a minor post on the Family Court for the nephew of another Democratic state senator. It was a masterpiece of a deal, and everyone was confirmed. The connections did not end there, however. Strine and Vaughn continued to live a parallel judicial life. Strine became the chancellor, running the Court of Chancery. Vaughn became the president judge, running the Superior Court. Then months apart in 2014, they were yoked together all over again. Strine was made the chief justice and Vaughn a justice on the Supreme Court. They could not have done it without each other.

Then there was a deal that was more political than judicial. Jane Brady was supposed to be running for a fourth term as the Republican attorney general in 2006, but she was hearing footsteps. Beau Biden was going to be the candidate for the Democrats. He was not yet a vice president’s son, but he was still a senator’s son, and also plenty well-known in his own right. There was a judgeship available on the Superior Court, and inquiries were made through back channels to Ruth Ann Minner, the Democratic governor, to see if she might appoint Brady. Minner was a very practical politician. She had no trouble putting Brady on the bench. It meant Minner would be able to appoint her own attorney general to serve until the end of Brady’s term, and she could also do the Bidens a favor by getting Brady out of the way and setting up an open race for attorney general for Beau. Many lawyers were appalled, but the state senators were not. Brady got her judgeship.

Not that anything new is going on. Judicial deal-making goes all the way back to Delaware’s early days of statehood in the 18th century. In those days, the political parties were the Federalists and the Democrats. The Federalists ran the state, and they had designs on replacing William Killen, the chief justice who was a Democrat, with one of their own. They wanted George Read, the famous statesman who was a signer of the Declaration of Independence and a delegate to the Constitutional Convention. Killen, however, had a powerful ally in John Dickinson, a Democrat who was a former governor as well as a delegate to the Constitutional Convention. An accommodation was made. Read became the chief justice, and Killen took over as chancellor. Even when John Dickinson and George Read are involved, a deal is a deal for all that.

Illustration by Tom Labaff

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