Markell makes big impact on state’s courts


DOVER — By the end of the year, Gov. Jack Markell will have appointed or re-appointed all 10 members of the Supreme Court and Court of Chancery, to go with a host of judges on Superior Court, Family Court and the Court of Common Pleas.

Jack Markell

Jack Markell

In fact, come the October retirement of a vice chancellor, and the subsequent replacement, four Supreme Court justices, including the chief justice and four Court of Chancery members, including the chancellor, will have been selected by the governor.

According to officials and those in the know, no governor has appointed more judges than Gov. Markell’s 36, and perhaps no Delaware governor has had a larger impact on the judiciary.

For starters, he’s the first chief executive of the state to name four people to the Supreme Court.

As a two-term governor, Gov. Markell, a Democrat, has had many opportunities to fill vacancies. But the previous four governors have all served for eight years, and officials believe they did not appoint as many judges as Gov. Markell.

Part of that, of course, is the size of the courts. The Court of Chancery was expanded to five seats in the late 1980s, and the Superior Court in recent years added two positions.

The biggest factor in the spate of vacancies is simply coincidental timing.

“As far as my former court is concerned, we were all pretty much the same age,” said former Chief Justice Myron Steele.

Mr. Steele, who now works as a lawyer in private practice, stepped down in November 2013 after 25 years on the bench, stretched across the Court of Chancery, Superior Court and Supreme Court.

Myron Steele

Myron Steele

He said he choose to retire to allow for “new blood” on the court and because he had reached a pension, gained after 24 years on the bench.

His retirement was, although unknown at the time, a harbinger of things to come. Ten years of uniformity was followed by 14 months of unprecedented change on the state’s top court. By January 2015, only one holdover remained.

Mr. Steele had few critical things to say about Gov. Markell, one of four governors with whom he served. But former Justice Carolyn Berger reported a different experience.

Ms. Berger, who could not be reached for comment, told media outlets in June 2014 she planned to step down because she believed the governor did not take seriously her application for chief justice.

Gov. Markell disputed her claims, saying he did not believe there had been conflict between himself and Ms. Berger.

Mr. Steele said he believed his former colleague’s departure was due not to displeasure but came instead because she had no more new challenges to overcome.

“She timed out just like I did, and I don’t interpret her comments to be she felt she was suddenly cheated out of an opportunity to be chief justice,” he said.

Ms. Berger, the first woman on the Supreme Court, was the third of four justices to leave between November 2013 and January 2015. Jack Jacobs stepped down in July 2014 and Henry Ridgely followed in January. All four justices left before their terms were up.

Leo Strine

Leo Strine

Mr. Steele was replaced by Leo Strine, who served on the Court of Chancery from 1998 until he was sworn in to his new post as chief justice in January 2014. Both men are Democrats.

Mr. Strine was succeeded by Karen Valihura, briefly giving the court three Republicans and two Democrats. When Mr. Ridgely left the bench in January, he was replaced by Democrat Collins Seitz Jr.

A unique system

While it might appear, especially to someone unfamiliar with Delaware’s judicial system, the governor has had an opportunity to shape the state’s courts for years to come, his impact is somewhat muted compared to what it would be in other states.

Delaware requires the courts to be politically balanced. Because every court currently has an odd number of judges, there can, by law, be no more than one additional member of each party on the benches.

This system is drastically different from the federal one, where a president can influence policy years after leaving office through previous appointees to the courts. On the nation’s top court, judges in poor health or old age will also try to stave off retirement until a president from the same party as them takes office to avoid tipping the balance. Fierce partisan battles are waged.

The fact judges are chosen for life does not help.

In contrast, Delaware’s judiciary, officials say, is much less polarized.

“I think it’s a really good requirement because I think over a period of time it helps Delaware in terms of stability to help courts that are balanced by party. So I think it’s a great rule,” Gov. Markell said.

According to Mr. Steele, the First State is the only one where the courts must have political balance.

Both he and the governor praised the nominating system, which relies on a committee that makes recommendations but still allows the governor to make the final selection. Some states elect their judges, while others give the governor or legislature the sole power to fill a position.

The nine-member Judicial Nominating Commission, which is balanced politically and has its members appointed by the governor, sends out notices of a vacancy. After candidates apply, the panel passes on a few names to the governor, who then selects the applicant he thinks is best.

“There’s no scrutiny over how he works it once it gets to his office, but he emerges with a single name that he sends down to the Senate, and then the Senate Executive Committee and the Senate as a whole has a hearing and it goes just like the federal system at that point, they confirm or not confirm,” Mr. Steele said.

Judges typically are approved by the Senate with little debate, at least publicly. They serve 12-year terms and are typically re-appointed, unless they choose to retire.

Gov. Markell often has pulled from one court to fill a vacancy on a higher one.

“That’s something governors like to do because they can make two sets of people happy,” Mr. Steele said.

James Vaughn Jr., for instance, was on the Superior Court for 16 years, the last 10 as president judge, until he was named to the state’s top court last year.

His appointment created a vacancy on the Superior Court, which was filled by Superior Court judge Jan Jurden. That in turn opened up another hole. Lawyer Jeff Clark eventually was selected for the post.

Mr. Steele believes Gov. Markell has improved diversity in the state’s judiciary. Ms. Jurden was the first woman to head the Superior Court, and Ms. Valihura the second woman on the Supreme Court.

While the former chief justice largely was complimentary of Gov. Markell, he did have one criticism.

Judges have not had a pay raise since 2007, aside from general state pay increases, he said, a change from prior administrations.

Except for magistrates serving on Justice of the Peace Courts, judges in Delaware make six figures. Those on the Superior Court, Court of Chancery and Supreme Court all are paid at least $180,000 per year.

For top lawyers in private practice, that does represents a pay cut, however. The State Compensation Commission, which was formed in the 1980s to create a report every four years on salaries for top state officials, including lawmakers, cabinet secretaries and judges, failed to provide recommendations in 2012. That went beyond the scope of its duties, which were only to make suggestions and let the governor and General Assembly determine the viability, Mr. Steele argued.

“My only disappointment in all the years was a lack of aggressive leadership by the pay commission, which is entirely appointed by him,” he said.

Comparing the governor to a CEO, Mr. Steele said the governor needs to fight for higher judicial pay to both take care of sitting judges and to attract top talent to the bench.

Going forward, what appears to be an unofficial record of 36 judges appointed is likely to remain in place.

“Look at the list of appointees, particularly Chancery and Supreme Court. We’ve got some pretty young people out there,” said Thomas Reed, Delaware Law School’s Taishoff Professor of Law.

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