Posted: Sept. 10, 2013
BETTER KNOW A SUPREME COURT
By Celia Cohen
Myron Steele is not just retiring as the chief justice and leaving the Delaware Supreme Court behind. He is leaving a message behind.
"For many years I've been troubled by judges staying longer than they should," Steele said in an interview Friday, the day his retirement was announced.
Steele has 25 years with the state judiciary. Chief or not, believe it or not, the tenure he accumulated as a chief justice, justice, vice chancellor and trial judge makes him the junior jurist among the five members on Delaware's highest court.
Every single one of them has been on the bench since the 1980s. Every single one of them has put in more than 24 years, the time it takes for a judge to be eligible for a full pension.
If Steele is truly setting an example, the Supreme Court is overdue for a massive makeover.
Steele's departure, scheduled for Nov. 30, comes three years before the end of a standard 12-year term for state judges and could be the first step toward a court with practically an entirely new membership over the next two years or so.
"The game is afoot. If I were a pool player, I'd wonder how I'd line up the shots," said Larry Hamermesh, a respected court watcher who is a professor at Widener University's Institute of Delaware Corporate Law.
"I am a pool player. I'm not the governor," Hamermesh quipped.
It would be a huge change. This court with Steele as the chief justice and Randy Holland, Carolyn Berger, Jack Jacobs and Henry duPont Ridgely as the four justices has been intact for nine years.
Furthermore, the changes are all-but-certain to cascade down through the judicial system with judges from the lower courts tapped to ascend to the vacancies. By the time Jack Markell, the Democratic governor, finishes his second term in January 2017, he could leave quite an imprint on the third branch of government.
In personnel, that is. Not on the court system itself, which is famous as a forum for business law.
"There's something about our fair jurisdiction that has an institutional quality that transcends the people who make it up," Hamermesh said.
The chief justice is the linchpin. Like all state judges, the next one has to be nominated by the governor and confirmed by the state Senate. Markell is expected to have a name ready by the time the General Assembly reconvenes in January for its 2014 session.
The governor will make his choice from a list sent to him by his Judicial Nominating Commission, which is charged with screening the applicants and recommending at least three candidates.
Politics is not necessarily at issue. The state constitution requires the judiciary to be balanced politically, but because the Supreme Court will be left with two Democrats and two Republicans, the next chief justice replacing Steele, who is a Democrat, could go either way.
It should be noted, however, the governor and the Senate majority are both Democratic, although Holland has the stature to transcend political labels.
Geography is not at issue. Steele is from Kent County, but the court will still have Berger and Jacobs from New Castle County, Ridgely from Kent County and Holland from Sussex County. No matter who the new chief justice is, all three counties will be represented, as tradition demands.
Diversity could be at issue, however. Only one woman has sat on either the Supreme Court or the Court of Chancery, the go-to destination for business law, and it is the same woman. That would be Berger. No minority has been appointed to either of those courts.
For now, there is no telling who will be next to assume the Supreme Court's center seat.
Within the state's legal circles, it would not be seen as a surprise if all four justices apply. Other names being mentioned are: Leo Strine Jr., the chancellor from the Court of Chancery; Jim Vaughn Jr., the president judge of the Superior Court; and Jan Jurden, a Superior Court judge.
There also could be any number of senior partners looking in the mirror and seeing the next Norman Veasey, a former chief justice who was appointed directly from the law firm of Richards Layton & Finger.
Delaware has only had seven chief justices since the modern Supreme Court was created in 1951 -- Clarence Southerland, Charles Terry, Daniel Wolcott, Daniel Herrmann, Andrew Christie, Veasey and Steele -- so judges and lawyers are finding the parlor game of guessing who will be the next one to be irresistible.
People's heads are already hurting as they try to figure out not only this opening, but the potential derivative openings. One said it is like puzzling over a chess board.
In three dimensions.