Shumlin’s Failed Dooley Replacement

by John McClaughry

Two weeks ago, in one of my commentaries, I objected to Gov.
Shumlin’s decision to nominate a new Supreme Court Justice to replace
Justice John Dooley, on the grounds that there is not at this point a
vacancy to be filled.

Now, after receiving lengthy briefs and hearing oral argument, the
Supreme Court decided, in its own words, “There has to be a vacancy to fill,
and there is no vacancy if the office is occupied…there is no support for
[Gov. Shumlin’s] position that the Vermont Constitution gives him the
authority to appoint a successor for an opening on this Court that does not
become vacant – unoccupied – until after he leaves office.”

This embarrassing episode will probably not amount to much, but the
question remains “who thought this up? Shumlin? Dooley? A third party?”
If Dooley thought it up, which to my mind is well within the bounds
of possibility, why did he sit on the bench to hear the case – and join the
other Justices in unanimously deciding that Shumlin had no power to do what
Dooley had urged? Did he experience a mid-flight conversion?
And why did the independently elected Attorney General defend the
Governor in a case brought by members of the Legislative Branch? Does he
think he is there to defend the Democratic Governor against a case led by a
Republican Senator?

Maybe we’ll get some answers – I hope so.

- John McClaughry is vice president of the Ethan Allen Institute.


{ 2 comments… read them below or add one }

j. paul giuliani January 7, 2017 at 6:19 pm

John –
Don’t hold your breathe waiting for answers. Dooley’s fingerprints are all over this thing. He has had plenty of experience. His orchestration of Mahady Affair is probably the most notable. What’s particularly troubling here is Dooley sitting on a Supreme Court panel that’s considering Shumlin’s authority to appoint a successor in a tribunal vacancy created by Dooley himself, a successor whose appointment probably was already in the bag. I can’t say the Attorney General covered himself in glory either. I guess the rules apply only to Republicans. Be well.


Joel Williams January 11, 2017 at 9:34 pm

Well said J. Paul; and, John, good questions. Dooley certainly could have orchestrated the whole affair but one must wonder why didn’t he recuse himself. The whole affair was Deja Vu of the Kunin/Dean years.


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