In a philosophical moment, Star Trek’s Mr. Spock professed that “logic is the beginning of wisdom; not the end.” And such is the case with the law and ethics. For those aspiring to higher levels of ethical conduct, the law sets the floor for behavior, not the ceiling – thus leaving space to navigate in between.
Long time Vermont Supreme Court Justice John Dooley has announced that after 30 years, he will not be seeking reappointment when his term ends in March, 2017. Until then - unlike the vacancy on the United States Supreme Court created by the death of Justice Scalia - Justice Dooley will be fulfilling all duties and the Court will maintain its full compliment of five justices.
In Vermont we’re lucky that our High Court has mostly avoided the political polarization that’s haunted the US Supreme Court. Still, although the Vermont Justices officially have to stand for reappointment by the legislature every six years, practically speaking, their appointments amount to life tenure (albeit with a mandatory retirement age of 90). Thus, one of the ways that a sitting governor can substantially impact his or her legacy is through the appointment of a Justice.
Judicial appointment by the Governor with confirmation by the legislature is a relatively new development. Until the 1970s, through a mix of law and tradition, vacancies were filled by the legislature through direct election of the most senior trial court judge. It wasn’t really until 1981 that someone outside of the judiciary was appointed to the High Court.
The statute on appointment of a new Justice allows the process to begin when a judicial vacancy or contemplated vacancy occurs. However the Vermont Constitution only discusses actual vacancies. Regardless of what a sitting governor can do under the law, the real question in a scenario like this is what a sitting governor should do.
At a recent debate neither Phil Scott, nor Sue Minter sounded pleased with Governor Shumlin’s decision to appoint a Justice, while having one foot out the door of the Governor’s Suite. It’s clear - at least from the outside looking in - that the Governor is trying to shore up his own legacy, rather then take the high road and let his successor make the appointment.
Perhaps the words of Philosopher/Wizard Albus Dumbledore are equally relevant in this instance and the Governor must “face the choice between what is right and what is easy.”