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
Maybe we’ll get some answers – I hope so.
- John McClaughry is vice president of the Ethan Allen Institute.