Posted: June 1, 2011
GOVERNOR GETS THE CHOICES FOR CHANCERY
By Celia Cohen
The list of candidates for the Court of Chancery, one of the prize appointments not just here in Delaware, but in all of judicialdom, is out, and it appears to be surprisingly short.
So short that Jack Markell, the Democratic governor who will make the choice, could not even get through eeny, meeny, miney, mo, if he were so inclined, but would have to stop at miney.
There are three names for what could turn out to be two openings, one for chancellor and another for vice chancellor, Delaware Grapevine has learned.
They are said to be Leo Strine Jr., a vice chancellor who could move up to chancellor, Sam Glasscock III, already on the court as a master, a type of junior judicial officer, and Karen Valihura, a partner in the Wilmington office of Skadden Arps, a vast and formidable law firm with a global reach.
The names are supposed to be strictly confidential, but really. This state is way too small for secrets. The presumed candidates are not to be blamed, however. They either made themselves unavailable or declined to comment.
This short list was compiled by the Judicial Nominating Commission, a gubernatorial panel that reviews applications and winnows the field. Governors typically are given at least three names for each judgeship, so it is an oddity that this could be a case of choosing two out of three.
A governor always has the option to ask for more names, but if Markell did, it could hamper his intent to seek a confirmation vote from the state Senate before the General Assembly closes out its 2011 session at the end of the month.
"June 30th continues to be the day the sand falls out of the hourglass," said Brian Selander, the governor's chief strategy officer.
The next chancellor will replace Bill Chandler, who is leaving for private practice in mid-June after 26 years as a judge, 14 of them spent as the chief of the court that has made Delaware the lodestar of corporate law, not to mention a lucrative revenue source for the state budget.
Strine, a vice chancellor since 1998, has been widely regarded in legal circles as the leading candidate to take over the court, even if his undeniable intellectual firepower has been known to give way to adolescent indulgences, as it did at a recent law conference at Tulane University, where he described the attorneys celebrating a court victory for a company called Airgas as "Airgasmic."
Strine is the only Democrat on the short list. If he moves up to replace Chandler, who is a Republican, the new vice chancellor must be a Republican to satisfy a requirement in the state constitution for political balance in the judiciary.
The candidacies of Glasscock and Valihura represent competing constituencies. It means the governor is going to make a lot of people unhappy, no matter what he does, because either women or Sussex County would be left out.
By tradition, the five judges on Chancery are drawn from the state's three counties, but by hard count, none of the judges are women. When Chandler exits, there will be no judge from Sussex County, unless Glasscock joins the court, but still no women, unless Valihura does.
What is to be done? A governor can be the governor of all of the people some of the time, and some of the people all of the time, but not all of the people all of the time.
The list of candidates is so short, it is in danger of resurrecting the old Skadden conspiracy theory, which holds that the law firm regards the Court of Chancery as a takeover target for legal advantage. It was last in full cry when Strine was put on the court by Tom Carper, the Democratic governor who moved on since to senator.
Strine was Carper's counsel at the time, but before that, Strine was a Skadden associate. Valihura is with Skadden now. Michael Barlow, the counsel to Markell, also used to be at Skadden. Once upon a time, so were Andy Bouchard, the chair of the Judicial Nominating Commission, and Stuart Grant, another member of the commission.
The shorter the list, the longer the intrigue.