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April 25, 2013

Who Will Shumlin Appoint to the Vermont Supreme Court?

VT Supreme CourtJust two years into his tenure, Gov. Peter Shumlin picked up a rare opportunity this week to select a second nominee to the Vermont Supreme Court. 

And Justice Brian Burgess' decision to retire this August may not be the last on Shumlin's watch. Court-watchers (there ain't that many in Vermont) say they expect another vacancy on the five-member court in the next few years — possibly Justice John Dooley, who is 69 and has served on the court since 1987.

At the very least, that means Shumlin's imprint on the court might be here to stay for quite some time. Given that Burgess, who was appointed by Republican governor Jim Douglas in 2005, was one of the court's more conservative members, it also means that whoever Shumlin picks could move an already liberal court even further to the left.

So who's on the short list?

Surely there isn't one yet. The gov's tied up trying (in vain) to keep the legislature in line, and there's no great hurry to appoint a successor. Furthermore, potential nominees will first have to apply for the post, and each must be vetted by the 11-member Judicial Nominating Board, not all of whose members have been appointed.

But in the interest of furthering idle speculation, Seven Days touched base with several people in the purple zone of the legal/political Venn diagram — all off the record, of course — and this is what we heard:

Youth and gender: Shumlin will surely look for a nominee who plans to serve for quite some time. Dooley, after all, was just 43 when former governor Madeleine Kunin picked him — he was serving as her secretary of administration at the time — and he's still chugging along.

When Shumlin chose his legal counsel, Beth Robinson, to replace retiring justice Denise Johnson in 2011, he kept the court's gender balance at three men and two women. Now he has the chance to appoint the first majority female court in the state's history. Given all the gov's recent talk about elevating women to leadership roles, mightn't he want to put his money where his mouth is?

Perhaps the most buzzed-about candidate fitting both those criteria is Shumlin's own chief of staff, Elizabeth Miller. The 42-year-old Burlington attorney was a finalist for a federal judgeship four years ago and, like Robinson, could be expected to bring her Shumlin loyalty to the court. That said, the scuttlebutt is that she's simply not interested in the job.

Political picks: God knows there's no shortage of lawyers in state government, and surely many of them might make the grade as a justice.

One name we've heard a couple times is that of Deb Markowitz, a former secretary of state and 2010 gubernatorial rival to Shumlin. Now serving as secretary of the Agency of Natural Resources, Markowitz might see the court as a great place to land.

Our favorite political conspiracy theory? How about Attorney General Bill Sorrell?

Back in 1996, then-governor Howard Dean wanted to pick then-administration secretary Sorrell to serve as chief justice. But when the Judicial Nominating Board refused to put Sorrell forward for the post, Dean chose then-attorney general Jeffrey Amestoy and appointed Sorrell AG.

Perhaps it's time to give Sorrell another chance?

Imagine this scenario: If Shumlin taps Sorrell for the job, he could then appoint Chittenden County State's Attorney T.J. Donovan, who narrowly lost a primary to Sorrell last year, AG. In one fell swoop, Shummy would appease a Democratic base unhappy with Sorrell, elevate an ally to a statewide position and tweak House Speaker Shap Smith, who's also been eyeing the AG post.

It's a nice theory, but it's just that. Despite Shummy's love for political machinations, one would hope he'd take the process more seriously than that.

A better bet? Perhaps one of Sorrell's underlings in the attorney general's office — like assistant AG Bridget Asay or deputy AG Susanne Young.

The bench: If there's one thing lacking from the court's current makeup, it's experience as a judge. Justice Marilyn Skoglund is its sole current member to have served on a lower court.

Among the most frequently-named contenders from the state's superior court? Helen Toor, Karen Carroll and John Wesley. 

Of course, the only real requirement is that a nominee practice law in the state for five of the last ten years. Candidates could come from private practice or, say, Vermont Law School. One name we've heard bandied about? VLS professor and omnipresent legal commentator Cheryl Hanna.

But if Shumlin appoints Hanna, who on earth will we in the press go to for comment?

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