Posted: Aug. 25, 2015
CONSTITUTIONAL CHECKS OUT OF BALANCE
By Celia Cohen
One branch of government looks like it is not enough for Leo Strine Jr., the chief justice. He has taken to ordering around two.
In addition to the judicial branch, which he is supposed to lead, Strine has trespassed onto the legislative branch, which he is not.
Of all people, the chief justice would kind of be the last one to be expected to forget about the three branches of government and the separation of powers. It would be kind of like forgetting he got a robe and gavel, not a robe and crown.
For now, the legislative branch sounds willing to forgive him his trespass. Strine has raised eyebrows, not hackles. But his reign is young.
The constitutional checks for the three branches of Delaware's government came out of balance over a Judicial Strategies Committee, a new assemblage conceived by Strine to envision the court system of the future and suggest ways to get it there.
This was classic Strine. In a year and a half of his 12-year term as chief justice, he has shown an inclination to think big. Big opinions. Big presence with the American Bar Association. Big teaching assignments at Harvard, Penn and Vanderbilt. Today the judiciary, tomorrow the world.
The Judicial Strategies Committee was created by a Supreme Court order, signed by Strine. It required judges to serve, which was fine. It required officers of the state bar association to serve, which was also fine. It required legislators to serve, which was not so fine.
The legislators so ordered were: The two Democratic co-chairs of the Joint Finance Committee, which writes the budget, as well as the Democratic chairs of the Judiciary Committees in the Senate and the House of Representatives, plus two Republicans from the Judiciary Committees after consultation with the Republican minority leaders.
A Supreme Court order directed at legislators?
"It's a first for me in 13 years," said Pete Schwartzkopf, the Democratic speaker of the House.
"Leo's got a lot of ideas, some he gets way out in front of. I don't know that he can compel legislators to do anything. If people are going, I assume it's voluntary."
It is not that the judicial and legislative branches should not brainstorm together. It is that there are protocols between co-equals to be observed.
"I had the sense the appointments of the legislators should have been made by the pro tem and the speaker," said Patti Blevins, the Democratic president pro tem of the Senate.
"I think it's just a courtesy issue. He's new, and he's learning to be in charge. It would be my hope that in the future he'd be a little more collaborative."
As if the situation was not already out of whack, it got even odder with Strine, who is a Democrat himself, providing for the Republican minority leaders to have a say about legislators who would serve on the committee but not the Democratic speaker and the pro tem.
"Since when do they consult with the Republicans but not the Democrats?" quipped Gary Simpson, the Senate minority leader.
It is a fine mess, all of this blurring about who should appoint whom, from a chief justice who is famous for saying people should "stay in their lane." Other people, it would seem.
"It was not in any way meant to be intrusive. There was no intention ever to do that in any way. It was to try to get us all together, working together," said Pat Griffin, the state court administrator.
"We have the utmost respect for the speaker and the president pro tem and for the legislative process overall. That deference was built into the process of including the chairs of the Joint Finance Committee and the Judiciary Committees, because those committees obviously are appointed by the leadership in both the House and the Senate."
The committee met once on July 20 at Buena Vista, the state conference center near New Castle. Other sessions have yet to be scheduled, and it is unclear whether they would be open to the public, although both Blevins and Simpson said they should be. Schwartzkopf was not sure.
Some but not all the legislators went to the first meeting.
"I took it as an invitation," said Margaret Rose Henry, a Democratic senator who attended as the Judiciary Committee chair.
"He's trying very, very hard to transform the courts, and to his credit, he's trying to make it more responsive to current needs. He's trying to have our legal system work properly."
Here is a judicial strategy. There are three branches of government. Remember it.