Member since Dec 28, 2012


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Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

Heat doesnt really concern me, especially from pseudonymous sources, but I do appreciate real thoughtful dialogue, so thanks again for the reply, Senator.

Only two possibilities make sense to me. Either the incumbent governor can make an appointment, he does so before the terms of the existing senators expire, and the senate is able to consent before all the relevant terms expire. Or the governor does not make the appointment before his term expires, or the senators terms have expired by the time it is able to consent, then the new governor and the new senate appoint a new JNB, which then makes a new set of recommendations, and then the new governor appoints and the new senate confirms. Unlike you, in that circumstance, I assume the old recommendations would expire with the old JNB.

Why should a new governor and/or a new senate be bound by recommendations from a JNB whose terms have expired?

You seem to believe that the JNBs job is to make the recommendations because the statute so commands. But that doesnt make much sense to me unless this is some kind of make work program for appointees.

The statute orders them to do so in order that the governor can make a (legally acceptable) appointment and for no other reason.

In effect, I see this as ONE job, of which there are 3 coordinated parts: the JNB recommends so that the governor can appoint so that the Senate can confirm. Take out any one of the three parts and the job is not complete.

It will, indeed, be interesting to see what the Supreme Court has to say. Theres a lot more here than first meets the eye.

4 likes, 10 dislikes
Posted by JohnGreenberg on 12/26/2016 at 7:24 PM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

Citizen claims that I said that a governor is not allowed to act on issues after their term is up. I didnt say anything resembling that, although if citizen means that governors may act as governors only while theyre serving as governors and not afterwards, it would certainly appear to be correct.

In any case, none of this is at issue here. The current governor was planning to make the appointment DURING his term, not after. Representative Turner has raised the issue of whether the appointment can be made when a justice declares that he does not wish to be reappointed, or only after he actually vacates his position and the Supreme Court of Vermont will now hear and decide the case.

In the face of Senator Bennings argument for Rep. Turners position, Ive tried to show that there is a reasonable legal argument to be made for the governors plan, and indeed, that the latter position is MORE reasonable legally because it gives full meaning and force to both the statute AND to the constitution, while Bennings interpretation puts them in conflict.

In any case, no one is trying to change the rules. There is a legitimate question here as to what the rules really are.

Finally, again, I would suggest that someone should take a look at the preceding two centuries of Vermont history to see if this situation has arisen previously and how it was handled. It seems improbable that no similar situation has arisen in all that time.

2 likes, 17 dislikes
Posted by JohnGreenberg on 12/25/2016 at 11:42 PM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

Senator Benning:

A few quick additional points.

First, word count limits precluded my thanking your for your response. So thank you.

Second, your example is poorly chosen: Let's suppose Justice Eaton suddenly announced an intent to leave the Court in 2025. Its 2016. Terms are 6 years, so Justice Eatons decision about 2025 is irrelevant. To be pertinent, the announcement would have to pertain to the expiration of a Justices term, so no later than 2022.

I realize youre trying to propose reductio ad absurdum argument to make your point, but the question you raise is a perfectly real one: How far into the future should [a[ Governor be able to bind a future governor? When SHOULD a justice make a declaration that he or she intends to leave, and how soon before an actual vacancy a governor should make appointments? I find it hard to believe there is no precedent about this when this occurs within a governors term.

What makes this situation perhaps unique (Has anyone researched the question historically to see if it has arisen in the past?) is that it is occurring just at the end of the term of a governor who will not succeed himself.

Im glad the Supreme Court will make this decision and not me. Frankly, what Governor Shumlin is doing appears to me to be legally correct, but democratically wrong, so Im actually rather torn. But as I say, its not my decision to make!

3 likes, 13 dislikes
Posted by JohnGreenberg on 12/25/2016 at 4:15 PM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

Senator Benning:

You suggest that there is a conflict between a statute and the constitution. That is precisely my problem with your analysis: it puts the two texts in conflict.
Respectfully, I submit that there is a plausible alternative reading. Youre right that the Constitution mentions only vacancy (without further definition). But there is nothing in its language that I see that precludes interpreting it the way the statute appears to. Indeed, section 34 states: At the end of the initial six year term and at the end of each six year term thereafter, such justice or judge may give notice in the manner provided by law of a desire to continue in office and then addresses what happens when a justice DOES so desire. It says nothing at all about the situation where one doesnt, and certainly nothing to PRECLUDE appointment in that situation.

In my view, this DOES sets up a situation where there is interpretative uncertainty, but not necessarily conflict. Conflict implies that the two texts are at odds with one another. My understanding is that the strictures of legal interpretation require us to presume that the legislature doesnt write laws which contradict the constitution, unless there is no viable way to maintain that view. Ive suggested one such reading. There may be others.

The obvious implication of your reading is that the incoming governor should make the appointment. But then why shouldnt the new governor get to appoint the JNB? How does it make sense to saddle the new governor with the recommendations of a JNB appointed by the old one, or worse, have him simply ignore them and start afresh?

I dont approach this as a partisan issue, nor is my reading necessarily an expression of my preferred outcome.

1 like, 14 dislikes
Posted by JohnGreenberg on 12/25/2016 at 4:02 PM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

How courageous, "knowyourassujptions," to boldly attack me personally while hiding behind a pseudonym.

As the governor well knows -- he was my senator for many years -- we have taken opposing sides on more than one issue, including, prior to 2010, VY..

I see no reason why I shouldn't defend positions with which I agree, and no one pays me to do so.

I did confidently predict that the courts would be smarter than they were about VY. I was wrong.

2 likes, 17 dislikes
Posted by JohnGreenberg on 12/25/2016 at 3:18 PM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

The headline on this story suggests that the Court has issued a ruling against the governor. Assuming I understand all the stories Ive read, thats not what happened.

The court has put a stay on the governors action UNTIL it hears the case. Simply put, the Court agreed to hear the case brought by Rep. Turner.

Theres a big difference between HEARING a case an DECIDING it.

3 likes, 9 dislikes
Posted by JohnGreenberg on 12/25/2016 at 9:30 AM

Re: “Vermont Supreme Court Blocks Shumlin From Picking New Justice

Senator Benning:

Youre a lawyer; Im not. But your argument seems unpersuasive.

4 VSA 602(b) says: Whenever a vacancy occurs in the office of a supreme court justice or a superior judge, OR when an incumbent does not declare that he or she will be a candidate to succeed himself or herself, the judicial nominating board shall submit . (emphasis added)

First note that the law says shall not may. The Board is given an order, not an option. Now, why would the law require the Judicial Nominating Board to make a submission to the governor that the governor is enjoined from acting on? Your argument requires just that: the Board is tasked with making a list of nominees, which is, according to you, totally useless.

The far more logical and natural reading, in the absence of any definition of vacancy elsewhere in the statutes, is that the law foresees appointments in EITHER situation.

Otherwise, the clause beginning with or is either useless or meaningless.

3 likes, 14 dislikes
Posted by JohnGreenberg on 12/25/2016 at 9:29 AM

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