Polite Political Battle at the Vermont Supreme Court

BRATTLEBORO, Vt. (CN) — In a photographic negative of the U.S. Supreme Court shenanigans in Congress, the Vermont Supreme Court heard arguments Tuesday on whether its Democratic governor can appoint the replacement of a sitting justice set to retire in March.

Gov. Peter Shumlin, a three-term Democrat, will be replaced by Republican Phil Scott on Thursday afternoon. Shumlin did not run for a fourth, two-year term last year.

Associate Justice John Dooley announced in September 2016 that he would retire when his term ends on March 31. Shumlin promptly raised Republican hackles by saying he would appoint Dooley’s replacement before he leaves the governor’s office.

Meanwhile, Republican leaders in Congress were refusing to call a confirmation hearing for President Barack Obama’s Supreme Court pick Merrick Garland, a nomination the Republicans now have effectively killed.

Supreme Court justices in Vermont serve six-year terms and all come up for retention on the same day — this year on March 31.

Two Republican lawmakers, House Minority Leader Don Turner and state Sen. Joe Benning, took Shumlin to court, claiming he has no authority to replace a justice who has not retired, and who will not retire until Shumlin is out of office.

Shumlin says he’s following the law, having received a list of six candidates from the Judicial Nominating Board. In Vermont, the governor chooses his nominees from the Nominating Board’s list, and submits the names to the Vermont Senate for approval.

The list of candidates is confidential, state Sen. Peg Flory told the Burlington Free Press, the state’s leading newspaper. Flory, a Republican, is an attorney and serves on the Judicial Nominating Board.

In a jiu-jitsu argument for Shumlin on Tuesday, Assistant Attorney General Benjamin Battles told the Supreme Court that Turner and Benning had no right to challenge the governor.

After the hour-long hearing, Turner told the Free Press that governors had no right to “stack” state appointments before they leave office.

Associate Justice Harold Eaton, a Shumlin appointee, pointed out that all Vermont justices must retire when they turn 90 — “in my case, Dec. 31, 2045.”

“Does that mean Gov. Shumlin can name my replacement?” Eaton asked.

There was no indication how, or when, the court would rule.

The Vermont General Assembly has 180 members, 150 in the House and 30 in the Senate. Democrats control both houses, 18 to 9 to 3 Progressives in the Senate, and 85 to 53, to 6 Progressives and 6 Independents in the House.

Politics in Vermont as a rule, though partisan, lack the bitterness and animosity that has come to characterize politics in Congress and in so many states. Shumlin’s Republican predecessor Jim Douglas, for example, refused to join his party’s onslaught about the “dangers” of immigration.

Pointing out that Vermont is heavily reliant on its dairy industry, Douglas asked, while in office, “Who will milk our cows? Who will cut the hay?”

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