Montpelier
Shumlin will be choosing the successor for Justice John Dooley, who in September announced that he planned to retire when his term is over at the end of March.
The Judicial Nominating Board, a panel of legal professionals and lawmakers, reviewed 17 applications to fill Dooley’s seat, according to board Chairwoman Peg Flory. Flory, a Republican Rutland County state senator, is on the board in her capacity as a practicing attorney.
The board forwarded six candidates to the governor, she said.
A spokesperson for the administration confirmed that Shumlin intends to name Dooley’s successor before he steps down and Gov.-elect Phil Scott takes over in early January.
“The Governor is pleased that the process is moving forward. He looks forward to reviewing the names sent by the board, conducting interviews in the coming weeks, and appointing a new Supreme Court justice before he leaves office in January,” Scott Coriell said in a statement on Thursday.
Shumlin also is planning to appoint judges to two Superior Court vacancies in the coming weeks. Last week, he said he had received a list of names to review for those positions. He said he follows the same process for filling all three posts.
“What I do is meet with all of the candidates and then make the best judgment that I can,” Shumlin said.
Shumlin’s attempt to fill Dooley’s seat raised some eyebrows since Dooley still will be serving in the first few months of the Scott administration before he steps down. Shumlin argues he has the authority because Dooley announced his intent to not seek another term on the bench while Shumlin is still in office.
Flory said the Vermont Constitution is clear that it is the governor’s responsibility to appoint a judge to fill a vacancy in the five-member Supreme Court.
“The difficult thing is how do you define vacancy,” Flory said.
Flory said there is no precedent for the situation in Vermont’s history. Similar situations have arisen in other states, but had differing outcomes, she said.
A Shumlin appointment to the bench could face a legal challenge, Flory said.
Flory said she would have preferred to wait until Scott took office to move forward with the appointment process, but said she and the board decided to move forward with Shumlin’s request as they would in a less confusing situation.
“Could we have sat on it? Yeah,” Flory said. “If we had sat on it, everyone would have said the (Judicial Nominating Board) is playing Washington politics.”
Ethan Latour, spokesman for Scott, said the incoming administration does not plan to challenge Shumlin’s appointment, though he did note the situation is “a little unusual.”
On the national level, Republicans refused to take up President Obama’s choice for the U.S. Supreme Court, arguing last fall the nomination should be made by the next president.
Obama nominated Merrick Garland to replace the vacancy left by the death of Justice Antonin Scalia.