Striking Political Balance in Delaware Courts a Must

Find out what happens when a state Supreme Court chief justice retires.

Fie on politics. The ultimate intrigue in Delaware these days is in the courts.

Politics has gone stagnant. The Democrats rule. The Republicans are strategizing about a comeback, but even they concede, it will not be anytime soon.

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As Jack Markell, the Democratic governor, quipped about the Republicans a few months ago at the First State Gridiron political roast, “Their state party director said they have a ‘long-term view’ of rebuilding the party. Yeah, like I have a ‘long-term view’ of building electric cars at Boxwood Road.”

So forget politics. Given the choice between state politics and I-495, who could have guessed that politics is the one that is stable?

Never mind. There are three branches of government. If the executive and legislative branches, which are elected, have been recast more or less as wholly owned subsidiaries of the Democratic Party, the judicial branch is unelected and unbound.

The courts have turned into something Machiavelli could love.

The Delaware court system is like no other. This is the only place in the country where the courts are required by the state constitution to be balanced politically. It does not matter that the governor, who nominates the judges, is a Democrat and the state Senate, which confirms them, is run by the Democrats. The judgeships still must be divided between the Democrats and the Republicans.

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This political balance is taken very seriously. A couple of years ago, some Democratic lawyers changed their registration to make themselves eligible for a Republican judgeship, but they were exposed and sent packing.

This is also the most famous state court system in the land. That is due to the Court of Chancery, which hears corporate law cases. It has judges but no juries, and businesses love it. They flock here, bringing their robust incorporation and legal fees, because judges are generally predictable but juries are not.

The courts were not designed for turmoil. In addition to the built-in tranquility of the political balance, they come with elongated 12-year terms for the judges. The salaries are a solid six figures, but as always, salaries are in the eye of the beholder. The chief justice cleared $200,000 last year, more than the governor, who was paid $171,000, but less than a senior associate at a top law firm can bring in.

As intended, peace prevailed for a very long time. The Supreme Court, sitting atop it all, kept the same five members—Myron Steele as chief justice with Randy Holland, Carolyn Berger, Jack Jacobs and Henry du Pont Ridgely as the justices—for nine years. This is more unchanging than the College of Cardinals.

Then Steele announced late last year he would retire, and it has been about as stately as a game of Whac-A-Mole ever since.

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Not only was there fierce competition to replace Steele, but his departure set off a chain reaction among other members to go, too; nor did everyone decide to go quietly.

It will be some time before the state bench and bar, decorum personified, stop talking about the Supreme Court retirement that was the judicial equivalent of the Howard Beale I’m-as-mad-as-hell-and-I’m-not-going-to-take-this-anymore moment.

There was no real inkling of what was to come as Steele gave ample notice that he would be stepping down. No doubt, it was thoughtfully done, but it left months for factions to form over the choice for the next chief justice.

The selection process is supposed to be confidential—with the governor’s Judicial Nominating Commission screening the candidates and recommending a list of finalists—but there was nothing secret about this. It was all the talk in legal circles.

The names going to the governor were said to be: Leo Strine Jr., the chancellor on the Court of Chancery; Carolyn Berger, a Supreme Court justice; Jim Vaughn Jr., the Superior Court president judge; and Jan Jurden, a Superior Court judge.

Strine and Jurden were regarded as the favorites. Strine had a strong constituency in the corporate bar, and Jurden was an accomplished trial judge, who would have gone a long way in providing the court with the gender diversity it was sadly lacking. Many members of the bench and bar fiercely took sides.

Not that there was any reason to discount the other candidates. Vaughn ran the state’s largest court, which hears both criminal and civil cases, and Berger, the only woman ever to sit on either the Supreme Court or the Court of Chancery, had 20 years of experience on the high court.

Markell went with Strine, who was confirmed easily, but who knew what lurked in the minds of the unchosen?

It was festering as the Supreme Court shed another justice. Jacobs decided to retire. Markell and the Judicial Nominating Commission went back to work, and out popped Karen Valihura, a corporate attorney from the Wilmington office of Skadden, a global behemoth of a law firm.  

Valihura’s nomination was announced on the afternoon of Friday, June 6, a date which will live in judicial memory.

Hours later, the governor’s office was blindsided as Berger gave notice that she would retire on Sept. 1. Never mind her term was not up until 2018, and there had been no hint she was ready to go. It was such a stunner, the governor’s office took the weekend to regroup before Berger’s departure was announced officially.

The timing meant Markell would have to call the Senate back to Dover smack in the middle of the campaign season for a special session, so it could confirm a new justice. This was not exactly welcomed by either the executive or the legislative branches.

Berger was certainly acting like someone leaving in a mad-as-hell huff. When it looks like sour grapes and smells like sour grapes…

Days later, Berger told all in an interview with the Delaware Law Weekly. “Obviously, there is a relationship between my resignation and having been passed over for chief justice,” Berger said. “As a person who has been on both this court and the Chancery Court, to not have been taken seriously as a candidate was disheartening.”

What? Disorder in the court? Nobody saw that coming. There has been nothing tranquil about getting three new people on the Supreme Court inside of a year, especially in the case of a justice denied.   

 

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