By Elizabeth Kruska
No, you may not appoint a Vermont Supreme Court Justice where there is no vacancy.
In a 21-page per curiam decision (including a 2-page footnote!) grounded in the Vermont Constitution, the Vermont Supreme Court unanimously decided that under our state constitution, the now-former governor could not make an appointment to replace soon-to-be-former Associate Justice Dooley when the latter leaves his position on March 31 of this year.
Let’s back up. Way back in 1968 the legislature created a Constitutional Commission to address how judicial appointments were made. Up to that point, the legislature was charged with the duty of electing justices for vacant judicial seats. The Commission recommended changes that were ultimately adopted in 1974. From that point forward, the process was that upon a vacancy, a nominating board would recommend candidates to the Governor. The Governor would then appoint someone from that pool of candidates. In the case of a Supreme Court justice, the Senate approves the nomination and the person becomes a Supreme Court justice. This was the process for certain other appointments that required advice and consent of the Senate, and with the 1974 amendment made it the process for the Supreme Court, as well. This two-step process took politics out of the appointment procedure, since it requires not only a nomination but also a confirmation. Read the long footnote. It’s very good.