Gov. Phil Scott is holding up the appointments of two Vermont Superior Court judges over what he calls a lack of diversity in the candidates put forward by the state's Judicial Nominating Board.
In a sharply worded letter he sent the board in March, the governor cited "anecdotal evidence" that it has discriminated against women, and he called on its members to undergo implicit bias training. The next month, he sent a second letter demanding that the board conduct a new search for candidates.
But according to some on the 11-person nominating board, Scott is less interested in a diverse judiciary than one that shares his ideology. They call his request for a new slate of nominees an "unconstitutional power play" — and say it's unfair to pin the lack of diversity within the Vermont judiciary on them.
"That's bullshit," said David Silver, a Bennington attorney and one of three Vermont Bar Association representatives on the board. "The accusation that the candidates we selected reflected an implicit or explicit bias against women or minorities is so unfounded that I found it offensive."
According to the Vermont Constitution, governors can fill judicial vacancies only with candidates vetted and approved by the nominating board, whose members include representatives of the bar, the legislature and the administration. The system is meant to ensure an independent judiciary by checking gubernatorial appointment power.
But Scott has grown increasingly frustrated with how few candidates the board has sent him in recent years, a pattern he said has made it harder to appoint judges who resemble the state they serve.
"This isn't a blame game. This isn't about trying to exert undue influence or power on anyone," Scott said in an interview last week. "I just think this is an opportunity for us to do better."
Supreme Court Justice Marilyn Skoglund's announcement last week that she will retire in September threatens to raise the stakes of the dispute. Skoglund told Seven Days she's concerned that women have failed to gain sufficient ground on the Vermont bench since she was appointed a trial judge 25 years ago.
"We haven't done very well," she recalled telling the governor during a meeting in February to discuss diversity in the courts. "I told him that I was the seventh woman appointed to the trial bench and there are, as of today, only nine."
The private meeting in the governor's office, also attended by Chief Justice Paul Reiber, set the stage for a second one at the Statehouse that included the governor, the justices and a handful of legislative leaders, including Lt. Gov. David Zuckerman and Senate President Pro Tempore Tim Ashe (D/P-Chittenden).
Scott later wrote to the newly reconstituted nominating board, whose members serve two-year terms, to say some applicants "may be discouraged from applying because of the perceived unfairness of the process." He added, "I have heard this is particularly true for women."
The governor cited a letter from another body, the Judicial Conduct Board, which wrote to the nominating board in 2017 to pass along nonspecific complaints of "gender bias" in the selection process and a failure to avoid conflicts of interest.
Scott's letter and his April request for "additional well qualified candidates" struck a nerve among some board members, who viewed it as overreach by the governor and an unfair attack on their integrity.
"This appears to be an unconstitutional power play by the Governor to override our constitutional authority to exercise our discretion as to whom is well qualified to sit as a Superior Court judge," Silver, the Bennington board member, wrote in a March email to its newly named chair, Eleanor Spottswood. Allowing the governor to demand new nominees whenever it pleases him would make the constitutional separation of powers meaningless, Silver argued.
Sen. Jeanette White (D-Windham), one of three board members appointed by the Senate, expressed similar alarm at the governor's bias charge and said she was suspicious of his motives.
"It's mucking around in our business," White said.
She said she'd love more women and minorities to serve on the bench but doesn't see how the governor's discrimination allegation accomplishes that goal. White, who joined the board in 2018, said she never saw a hint of bias toward applicants in the two rounds of interviews in which she participated. It is not the board's role to increase the applicant pool, lower judicial standards, or take race and gender into account, she argued.
"I am not going to send up the name of a woman just because she's a woman if I don't think she's highly qualified, or a person of color just because they're a person of color," White said.
She plans to vote against the governor's request to reopen the selection process, a decision Spottswood said the board must make soon. White said the governor already has five qualified candidates to fill the two Superior Court openings.
The fact that the governor only recently raised the diversity issue and did nothing to try to expand the candidate pool on the front end suggests to her that something else might be afoot.
"These positions have been open for a long time, so if he was so concerned about it, he should have damn well gone out and recruited earlier, before the applications were given to us," White said. "The fact that he didn't says to me maybe he does have particular people [in mind] he wants [to appoint]."
Though Scott denies having any ulterior motive in holding the judgeships open, he wouldn't be the first governor to pressure the nominating board for different candidates.
In one memorable episode, governor Howard Dean sought to appoint his administration secretary, Bill Sorrell, to the Vermont Supreme Court in 1997, but the board declined to nominate him. Dean demanded a new list, and the board eventually sent him one — but it still didn't include Sorrell, who lacked judicial experience. The governor ultimately appointed attorney general Jeffrey Amestoy to the court and named Sorrell AG.
"I've said governor Dean fell out of a tree and landed on his feet that day," said Sen. Dick Sears (D-Bennington), who served on the board at the time.
Scott himself has previously demanded and received a new slate of nominees. In 2017, after the Supreme Court ruled that he — not predecessor Peter Shumlin — had the right to appoint retiring justice John Dooley's replacement, the board agreed to reopen its application process for the new governor.
Scott appointed Karen Carroll to Dooley's seat, bringing to three the number of women serving on the five-member court. But as Skoglund noted, the number of women serving on the state's trial courts has lagged.
Of the 34 trial judge positions in Vermont, 32 are occupied — 23 by men and nine by women. That means women make up only 28 percent of the bench. Only one person of color serves as a trial court judge.
"Obviously, there is an insufficient diversity on the bench," said Scott's legal counsel, Jaye Pershing Johnson. "Maybe that's not obvious to everyone, but it's obvious to me."
Johnson said she cannot say how many women have applied for the judicial openings since Scott has been in power, because the process is confidential. That lack of transparency presents a significant challenge to those seeking to evaluate the board's work.
But Johnson has seen the lists of candidates the board has nominated for the last six vacancies, and she said the trend is clear: too few nominees, and too few nominees who aren't white men.
For those six vacancies, the board submitted 15 names, only three of which were women's. The board nominated some people multiple times, so the number of unique nominees for those six positions was actually 11, Johnson said. That's 27 percent women — virtually the same as the current breakdown on the bench.
According to the Vermont Bar Association, 38 percent of attorneys in the state are women. That's a little higher than the national average of 36 percent, according to the American Bar Association. Nationally, women now outnumber men in law school enrollment, and they made up 57 percent of Vermont Law School's class of 2018.
These statistics are heartening, but for young women lawyers, the pace of change can be painfully slow, said Samantha Lednicky, the chair of the Vermont Bar Association's women's division.
"I feel like we still are in a male-dominated profession," Lednicky said, adding that many law firms remain dominated by "older white males."
Lednicky sees some signs of progress: Eight of the nominating board's 11 members are now women, including two of the bar association's three representatives — "a great first step," she said.
Officials suggest several possible factors behind the low number of applicants, regardless of gender, for recent judicial openings. According to Scott, it could be due to a decline in the state's workforce, which might shrink the pool of potential applicants overall.
Chief Superior Judge Brian Grearson suggested that geography may be a factor. The two positions that opened last year would serve Bennington County and the Northeast Kingdom — far from the state's legal hub of Chittenden and Washington counties.
"Those are tough seats to fill," Grearson said.
In addition, the legislature in 2016 raised the standard for judicial applicants from "qualified" to "well qualified," likely shrinking the pool of eligible applicants and narrowing the list of names forwarded to the governor.
The application process is also very intensive and intrusive, requiring personal and professional history, writing samples, detailed personal financial information, numerous references, and interviews by the board and, if nominated, by the governor and his staff.
"So, if they don't feel as though they have a chance, why bother?" Scott asked. "Why put yourself through it?"
Tim Hayward, one of Scott's two appointees to the board, said he is aware "there is a concern out there that, at times, the board perhaps has not been as sensitive as it should have been."
But he said he's never seen biased questioning firsthand.
According to Johnson, the administration has heard that at least one female applicant found a particular question offensive.
"They ask a man, 'What are you going to do about childcare arrangements?' and the man says, 'It's never been a problem for me,'" Johnson said. "They ask a woman, 'What are you going to do about childcare arrangements?' and the woman says, 'How dare you ask me that!'"
According to Silver, the criticism has come from "a single disgruntled female candidate who was [also] repeatedly rejected from several boards over many years" and who felt she was passed over because she was a woman, "not because she was otherwise unqualified."
Regardless of the accuracy of the claims, Spottswood, the new chair of the nominating board, said it "faces a crisis of confidence among some members of the legal community" that needs to be addressed.
"Clearly, bias of any kind does not belong in our judicial system," Spottswood said. "I believe the board can rebuild faith by implementing a clear process that treats all applicants fairly and professionally."
Spottswood declined to say whether she supported reopening the search for judicial candidates or how she would reform the selection process.
Paul Gillies, a prominent Montpelier attorney and author of the book Law of the Hills: A Judicial History of Vermont, said he thinks the governor is well within his rights to ask the board to expand the list. The board could reject his request, but precedent has favored the governor's position, he said.
"I think everybody enjoys a good constitutional confrontation, but it seems to me these crises tend to end with a happy resolution, and we go on," Gillies said.