Gov. Peter Shumlin is defending his decision to fill a vacancy on the Vermont Supreme Court before he leaves office at the beginning of January. Shumlin says it's clear that the Vermont Constitution gives him this authority.
But the campaign of Republican gubernatorial candidate Phil Scott thinks there's a political angle to the governor's decision.
Last week, Justice John Dooley announced that he would not seek another six-year term on the state's highest court.
Dooley was appointed to the Court in 1987 by Gov. Madeleine Kunin and is the third longest-serving justice in the history of the Vermont Supreme Court.
Shumlin has asked the state's Judicial Nominating Board to seek applicants for the post so that he can fill the vacancy before his term is over.
"Governors don't stop doing their jobs because they are finishing their terms,” says Shumlin. “Vermonters hired me to work as hard as I can to fulfill the obligations of the governor's office and I think past governors would agree that our job is to do our job until the next governor is sworn. And that's what I intend to do."
Brittney Wilson, the campaign manager for GOP gubernatorial hopeful Lt. Gov. Phil Scott, says Shumlin is probably within his legal authority to make this appointment. But she thinks Shumlin's motivating factor is purely political.
"It really begs the question about whether or not it's the right thing to do, considering the vacancy is going to happen three months into the term of the next governor,” says Wilson. “So for us it's just clear that the governor thinks that Phil is going to win, otherwise he'd wait and he'd let [Democratic candidate] Sue Minter make that appointment."
Because the new justice would not join the court until after Shumlin has left office, a number of legal questions have been raised.
Wilson wonders how Shumlin can make an appointment that doesn't go into place until well after he's left office.
"We would be curious to know the timing of all this,” she says. “It certainly sounds like Justice Dooley isn't stepping down until the end of March, so the timing is a bit curious."
Shumlin dismissed the allegation and insisted that he's just doing his job.
"I'm not going to get involved in the election discussion,” says Shumlin. “I’m not going to speculate on what candidates who are running for governor feel about my doing my job. My job, what I was elected to do, was exactly what the statute says."
Rutland senator Peg Flory is the chair of the Vermont Judicial Nominating Board. Flory, who is a Republican, says her board is busy right now trying to fill two lower court vacancies. But she's she'll try to meet the governor's timetable for the Supreme Court opening.
"I'll tell you it's not going to be easy,” she says. “I’ve sent out a notice to my board members to see what their availability will be for this new vacancy to try to come up with dates where we could interview potential candidates."
And Flory says it's important that her board steers clear of politics when making recommendations to the governor.
"I'm not sure it's the way I would have done it, but it is the governor's prerogative to do it, and he's chosen to take that prerogative,” said Flory.
Shumlin was asked by reporters if he's encouraging anyone to apply for the vacancy. Shumlin declined to answer the question by saying that that kind of information is confidential.