The Supreme Court Considers the Governor’s Right to Nominate Supreme Court Vacancies

In Representative Donald Turner, Jr. and Senator Joseph Benning v. Governor Peter Shumlin, 2017 VT 2 (Jan. 4, 2017), the Court considered a challenge by lawmakers of the Governor’s authority to appoint a successor to Justice Dooley’s seat on the Supreme Court, when, although the vacancy became certain during Governor Shumlin’s term, the seat would not truly become vacant until after the Governor left office.

Issue: Representative Turner and Senator Benning brought suit to challenge Governor Shumlin’s authority to appoint a justices to a Supreme Court vacancy in anticipation of Justice Dooley’s retirement from the bench. Justice Dooley did not seek reappointment as of the Sept. 1, 2016 deadline for approval by the legislature for his term, which would expire on March 31, 2017. Similarly, Governor Shumlin did not seek reelection in 2016, and Governor-elect Phil Scott would begin his term on January 5, 2017. However, Governor Shumlin expressed his intention to nominate Justice Dooley’s replacement before the end of his term, and affirmed this intention when challenged thereon.

Holding: Regarding a challenge to ripeness and standing, the Court determined that, even though no nomination had been made (and therefore no vote by the legislature), because Governor Shumlin’s intent was clear the issue was ripe for adjudication, and that Plaintiffs had standing because the legislature has an interest in be sure that it votes only on matters legally before it. The Court held that because Justice Dooley’s seat would not be vacant during Governor Shumlin’s term in office, that he would violate the Vermont State Constitution in appointing a new justice, a power which only allows him to “fill a vacancy.”