Posted: Aug. 30, 2012
HERE COME THE JUDGES
By Celia Cohen
The judicial branch will not be denied its share of attention in Delaware this fall. It is going to get so many new members, it could rival any changeover the executive and legislative branches get from the election.
There is so much turnover that Mike Barlow, the counsel to the governor, calls it a "judicial wave."
Eight judgeships are up for appointment to the Court of Chancery, the Superior Court, the Court of Common Pleas and the Family Court, every state court except for the Supreme Court. Also three commissioners who handle routine matters.
An onslaught of applications is expected, because only two judges are seeking a new term. It is too early to say who the front-runners are for the vacancies. Everything will be complicated as usual by the jigsaw puzzle caused by the constitutional requirement for political balance on the judiciary.
The appointments belong to Jack Markell, the Democratic governor who is up for election, no matter what. The state constitution lays down deadlines that compel the governor to act promptly on judicial vacancies, so he cannot delay even if he wanted to. Besides, Markell is widely expected to be back for another term.
The timing of the appointments means Markell will not be alone in dealing with them. So will the Senate, which has the power of confirmation. It will have to convene, most likely in December, for a dreaded special session.
The Senate is not happy. It had to have a special session for the same reason two years ago, in between the election in November and the return of the legislature in January, and it was not pretty.
The problem is it is the newly elected Senate that has to meet, so the senators will have to reorganize. They will have to swear in at least two new members, coming from two open seats in Sussex County, and they will have to elect a president pro tem.
When they did it two years ago, there was a very gory fight before Tony DeLuca was re-elected as the Democratic pro tem, and the hangover never went away. It is the reason DeLuca is battling for his legislative life right now in a primary.
"We would prefer not to go into session after the election and before the second Tuesday in January. There are going to be at least two new people that have to be sworn in then, instead of on opening day, and that's kind of tough on them and their families," said Patti Blevins, the Democratic majority leader.
"We've done it before, and we can do it again."
The timing is Tom Carper's fault. The Senate is complicit.
This turn of events was 12 years in the making, the length of a judicial term. Carper, the Democratic senator, was the governor in 2000, so what he did then begat what is happening now.
Carper loved to make judges, and he loved to promote judges from one court to another so he could make even more judges, and he loved to take his time doing it. Sometimes the Senate balked at his nominations and delayed them even further, declining to vote on them before the end of the legislative session on June 30.
This happened in 2000. Six judges were confirmed in special sessions, one in August and five in October, so all of those appointments are coming up again now.
In addition, the legislature approved two new judges for the Superior Court with terms beginning in January, so they have to be nominated and confirmed, too.
Here are the reasons so many judgeships are coming so late.
John Noble, vice chancellor up for reappointment
Noble was a lawyer 12 years ago. Then Maurice Hartnett III retired as a Supreme Court justice. Carper barely met the constitutional deadline to give the Senate time to confirm Myron Steele, then a vice chancellor, as the replacement on the last night of the legislature. Next Carper named Noble to Steele's vacated Chancery seat, and the confirmation vote came in October.
Peggy Ableman, vacating a Superior Court judgeship to retire
Ableman was on the Family Court. When Vincent Bifferato Sr. retired as a Superior Court resident judge, Carper promoted Richard Cooch and named Ableman to Cooch's seat in time to be confirmed before the end of the legislature. Then as now, Ableman's judicial temperament raised questions, and the Senate left her hanging, only grudgingly confirming her in October.
Joe Slights, leaving a Superior Court judgeship after one term
Slights was a lawyer. He went to the Superior Court when Bill Quillen decided to retire mid-term in September after a distinguished judicial career as a Supreme Court justice, chancellor and a Superior Court judge twice. Slights was confirmed in October.
Chuck Welch, Common Pleas judge up for reappointment
Welch was the Republican majority whip in the House of Representatives. Although Carper nominated him early in 2000, the Democratic-run Senate left him languishing just in case they needed a bargaining chip with the House. Welch was confirmed in August but did not move to the bench until his legislative term officially ended in November.
Joe Flickinger, leaving Common Pleas after one term
Flickinger was New Castle County's Republican register of wills. Although Alfred Fraczkowski retired from Common Pleas in the spring, Carper did not get around to naming Flickinger as the replacement for months. He was confirmed in October.
Jack Henriksen, removed from Family Court
Henriksen was a lawyer. A new Family Court judgeship was authorized in January, but Carper waited until the summer to fill it with Henriksen, who was eventually confirmed in October.
Henriksen was removed from the bench earlier this year for misconduct. As long as Carper waited, it could have been better if he waited even longer and let the next governor fill this one.