Posted: Sept. 19, 2013
INCOMING! THE JOCKEYING FOR CHIEF JUSTICE
By Celia Cohen
Be wary. Be very wary. Delaware has got to get a new chief justice.
The elements are there for the kind of intrigue and sabotage that Machiavelli would love.
Myron Steele, the chief justice since 2004, made sure there would be time for it, deliberately or not, by giving lengthy notice he would retire on Nov. 30. Nor does Jack Markell, the Democratic governor, need to rush his choice for a replacement, not with the General Assembly out until January.
"There is hope and expectation that the governor would be in a position to send a name to the Senate early next year," said Andy Lippstone, the counsel to the governor.
The stakes are great, because this one really matters. The chief justice leads the third branch of government, certainly considerable authority in its own right, but in Delaware's case, it is even more important than elsewhere.
The court system here is not only a place for hearing the usual criminal matters and civil disputes but also a renowned forum for setting business law, primarily through the Court of Chancery. It means prestige and a lot of state revenue.
The judiciary is ripe for generational change. The five members of the Supreme Court -- with Steele as the chief justice and Randy Holland, Carolyn Berger, Jack Jacobs and Henry duPont Ridgely as the justices -- have sat together for nine years, and all of them, not just Steele, are eligible to retire.
The chief justice is the linchpin, and generational change in public life virtually never comes without spasm -- as it did with the concerted rivalry for governor between Markell and John Carney, even if that one did work its way out with Carney recovering to become the congressman.
All eyes are primarily on Leo Strine Jr., the chancellor on Chancery, and Jan Jurden, a judge on the Superior Court, as the major contenders for chief justice, although the field easily could include any or all of the justices, the presiding judges of other courts and various senior partners, particularly the ones with corporate law practices.
Strine is as aggressively brilliant as Jurden is logistically grounded, his Slytherin to her Gryffindor.
Before they were judges, they did a turn in the political trenches, Strine as the counsel to Tom Carper, when the Democratic senator was the governor, and Jurden as an officer for the New Castle County Democratic Party.
They practiced at firms known as incubators for judges, Strine at Skadden, the out-of-state behemoth, and Jurden at Young Conaway Stargett & Taylor, the homegrown powerhouse.
Strine has been through a cutthroat confirmation war already. Carper wanted to make him a vice chancellor in 1998, but Strine as his counsel was not known for suffering fools, and this attitude was perhaps not the best approach for dealing with the legislature, kind of known as a ship of fools. There were hard feelings.
Strine did get confirmed, but not before Carper agreed to name one senator's son a judge and another senator's nephew a Family Court commissioner.
Jurden had no such trouble when Ruth Ann Minner, the Democratic governor, put her on the bench in 2001. All she had hanging out there were the editorial cartoons drawn by Jack Jurden, her father. Her confirmation went easily.
The factions are in the early stages of forming, the struggle-to-be made more intense because it is basically for one vote. That would be the governor's.
It has happened this way before. The Delaware bench and bar, despite their zeal for civility, went to the outer limits, if not beyond, the last time the state needed a chief justice and it went to Steele.
Although Minner was known to want to elevate Steele, a fellow Kent County Democrat, from justice to chief justice, there was a lot of sentiment for Randy Holland, another justice whose supporters all but organized a cheerleading line and shook pompoms. They held a special tribute for him, and Norman Veasey, the outgoing chief justice, had Holland introduce him at his retirement dinner.
Steele, meanwhile, was dragged into an ethics investigation for a strange infraction.
A Supreme Court panel had decided a heated case involving the owner of a mobile home park and the tenants. Steele ordered the ruling to be faxed to the lawyers. (This was 2004.) He assumed the fax had been sent when he mentioned the outcome in a conversation he had later with the winning lawyer, who represented the ownership, but it had not.
The tenants, who found out secondhand, were furious. They thought the fix was in. Steele was accused of favoritism and impropriety. He endured an excruciating eight days before he was cleared. Minner waited it out and then went ahead and nominated him.
When Veasey became the chief justice, he had a close call to dodge the intrigue.
Veasey was the choice of Mike Castle, the Republican governor, to go directly from a law firm to chief justice in 1992. There was some behind-the-scenes grumbling that Veasey had ingratiated himself by recently defending Castle in a political lawsuit, which was thrown out, but more perilously, Castle was nearing the end of his term and Carper was a shoo-in to succeed him.
In a telling years later by Carper himself, he had a feeler from the Senate Democrats asking if he wanted them to stall Veasey's nomination so he could name the chief justice. Carper let it lay, and Veasey was confirmed.
Anything goes when it comes to the chief justice. Be wary. Be very wary.