by Mike Smith This past week Governor Peter Shumlin surprised many when he announced that he would select and appoint a replacement for retiring Vermont Supreme Court Justice John Dooley. Here’s why it was a surprise: Justice Dooley will be retiring from the bench at the end of March, almost three months after Shumlin has left office.
Most had assumed that this appointment would be left for the next governor when he or she takes office in January. It is not unusual for future decisions to be held over for the incoming governor, especially decisions on appointments or events when they are not imminent. Of course, there are decisions that are urgent and need to be attended to by the current governor — after all, that’s still his job — but the incoming governor will also make some of these decisions. For example, the job of crafting a state budget for the next fiscal year becomes the immediate responsibility of the governor-elect, even though the sitting governor and his staff have been working on that same budget for months.
Governor Shumlin insists that he has the legal authority to replace Dooley, although it’s a safe bet that there will be varying opinions with regard to this authority. Even if Shumlin has the legal right to make such an appointment, many are wondering why it’s necessary to make this appointment now? Is it because Shumlin wishes to limit the power or discretion of the incoming governor to make such an important decision? If this is the motivating factor, then it will force a new governor to rescind Shumlin’s appointment should he or she disagree with it. But why put the state through all of this drama when the simplest solution would be to wait for a new governor to make the appointment?
To his political detriment, Governor Shumlin often forgets that doing something because he can doesn’t necessarily mean that he should be doing it. The governor tried to take advantage of a neighbor in a land deal because he could, but that doesn’t mean that he should have. The governor waited until after his last election — an election he almost lost — to announce he was abandoning his single-payer health care plans because he could; but that doesn’t mean it was the right thing to do. The governor tried to hide the nearly $4,000 expense of a privately chauffeured limousine service in addition to a rental car for his two-day trip to Paris last December because he thought he could. But a judge ruled these expenses shouldn’t be hidden. And now, the governor says he can and will appoint a Vermont Supreme Court justice, even though there is a legitimate question of whether he should do it.
Some will contend that questioning Shumlin’s decision to appoint Justice Dooley’s replacement is similar to Republicans in the U.S. Senate stonewalling President Obama’s attempt to appoint a U.S. Supreme Court justice before the president leaves office in January. But there is a fundamental difference between these two situations: there’s a vacancy on the U.S. Supreme Court because of the sudden death of Justice Antonin Scalia, whereas there will be no vacancy on the Vermont Supreme Court until the last day in March, when Dooley retires. This leaves an incoming Vermont governor with plenty of time to select and appoint a justice before a vacancy occurs.
With this upcoming election, there will be a new governor. Shumlin must recognize this and respect the outcome of this election. Trying to thwart a new governor’s appointment responsibilities in many ways is disrespectful to the new governor, but also to the voters. Shumlin has two choices: doing something because he can; or doing what’s right, and allowing his successor to select the next Vermont Supreme Court justice.
Mike Smith is the host of the radio program “Open Mike with Mike Smith” on WDEV 550 AM and 96.1, 96.5, 98.3 and 101.9 FM. He is also a political ana lyst for WCAX-TV and WVMT radio and is a regular contributor to Vermont Business Magazine, the Times Argus and Rutland Herald. He was secretary of administration and secretary of human services under former Governor Jim Douglas.