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Carter: The Power To Appoint

The start of the legislative session has always felt to me like a change of season. And with that change comes both trepidation and excitement over what new laws and policies might be adopted in the coming months. While many of us are focused on the transition of power in Washington DC and the constitutional implications of that transfer, I’m just as fascinated by the transition underway here.

And, just last week, the Vermont Supreme Court addressed a critical component of that transfer of gubernatorial power by ruling that then Governor Peter Shumlin lacked the constitutional authority to appoint a replacement for retiring Supreme Court Justice John Dooley.

Article 2, Chapter 32 of the Vermont Constitution, states that the Governor, with advice and consent of the Senate, shall fill a vacancy on the Vermont Supreme Court. On the constitutional role of the governor and senate, this provision is quite clear.
However, the controversy before the Vermont Supreme Court focused on the meaning of the word “vacancy” for the purposes of appointment. The reason for this was because Justice Dooley will not actually vacate his office until later this spring – several months after now Governor Phil Scott will have begun his term.

Simply put, the question before the Court was who has the power to appoint Justice Dooley’s replacement: Governor Shumlin or Governor Scott?

While this may seem like a minor legal detail, the implications are actually quite dramatic. Under Vermont law, a Supreme Court justice can remain on the court until he or she is 90 years old. Such lifetime appointments mean that Justice Dooley’s successor will have a role in interpreting the meaning of Vermont laws for decades to come. That’s huge.

The Court’s decision that governors lack the power to make appointments for vacancies that are announced but don’t actually occur until after their gubernatorial term is up, not only means the new Justice will be selected by Governor Scott in this case but that future gubernatorial appointments will be bound by this constitutional interpretation.

Former Governor Shumlin handled this constitutional defeat gracefully and current Governor Scott didn’t intervene during the legal proceedings. So the next Vermont Supreme Court justice will enter the job without the shadow of partisan politics tainting his or her appointment. And regardless of one’s political views, this is a good thing.