Posted: Dec. 7, 2010
THE CONSTITUTION SAYS
By Celia Cohen
There is apparently never going to be an uncomplicated path to Senate confirmation for Leo Strine Jr., the judge whose imperial brilliance makes him the Delaware Court of Chancery's very own human peacock.
The first time around, Strine's appointment for vice chancellor touched off a bazaar to come up with enough votes to confirm someone who is known for not suffering fools. By definition, this would include some state senators.
This time around, his reappointment is a constitutional headache.
It requires the Senate to consider Strine's new appointment by the governor in an unwanted special session. A very unwanted special session.
The Senate will return to Dover next Tuesday, Dec. 14, four weeks before the General Assembly is scheduled to convene Jan. 11 for its new two-year term.
The state legislature is not like the Congress, which can have a lame-duck session with the old members still in place between Election Day and the next term. Instead, the turnover in Legislative Hall is immediate after the election. If there is business to be done before January, the new members have to do it.
This means a potentially wrenching vote to install a new president pro tem is coming up somewhat earlier than expected. Legislative Hall is in high cockalorum.
The new Senate has 14 Democrats and seven Republicans, all of whom cast votes for the president pro tem. It should be Tony DeLuca, continuing as pro tem, but maybe not. His brook-no-dissent style has its detractors.
DeLuca had to turn back a surprising challenge within the Democratic caucus from Michael Katz, who could still make a run at pro tem if he and his Democratic allies can hold firm and make common cause with the Republicans.
"I guess there's going to be a challenge perhaps. We're in an interesting position. We haven't met. We will meet sometime before the 14th and see where the caucus wants to go," said Gary Simpson, the Republican minority leader.
It is a difficult vote -- for any senator thinking about taking on DeLuca and especially for a Democratic senator shattering the caucus unity. There is also the old saying to consider. If you go after the king, you had better kill him.
"If we have 11 people with the guts to say no, we shall see," said Karen Peterson, a Democratic senator backing Katz.
There is no question there has to be a special session. Strine's days on the bench are waning.
His 12-year term expired Nov. 9. A judge is allowed by the state constitution to stay on for another 60 days but emphatically no longer. "In no event," the constitution says.
Strine would be out three days before the General Assembly normally would be back in. The constitution has a remedy. It instructs the governor to summon the Senate to a special session, so that is what Jack Markell, the Democratic governor, did.
A constitution can be so inconvenient.
Whatever the turmoil in the Senate itself, Strine is expected to glide into his next term. This is not what happened when he was last nominated in 1998 by Tom Carper, the Democratic governor now in the U.S. Senate.
At the time, Strine was the 34-year-old counsel to Carper. Both then and today, Strine was known for his braininess, demolishing wit and little compunction about sandpapering others, no matter if they were state senators with the power of advice and consent or million-dollar lawyers in his courtroom.
Tom Sharp, a Democratic senator when Strine was first considered for the bench, told him, "Maybe the problem is some of us have gotten to know you very well."
Strine managed to be confirmed anyway with 12 votes, one more than necessary, but it did not take a divining rod to figure out where some of the votes came from.
On the same day Strine became a vice chancellor, the Senate voted to make one senator's son a Superior Court judge and another senator's nephew a Family Court commissioner.
Strine went on to a reputation as an able judge on the court that gives Delaware its international standing in business law. Never mind the periodic wincing over his bark and bite.
Memo to Strine and DeLuca. Give some thought to charm school.