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Shumlin's Unlikely Legacy: A Judiciary of His Appointees


Published October 12, 2016 at 10:00 a.m.
Updated October 18, 2016 at 3:58 p.m.

Left to right: Beth Robinson, John Dooley and Harold Eaton Jr. - MATTHEW THORSEN
  • Matthew Thorsen
  • Left to right: Beth Robinson, John Dooley and Harold Eaton Jr.

In assessing Gov. Peter Shumlin's legacy after six years in office, observers are likely to note the obvious highs and lows: his fight against opiate addiction, the failed single-payer health care plan, shutting down the Vermont Yankee nuclear power plant and his administration's ties to the EB-5 investment scandal in the Northeast Kingdom.

But in fact, one of Shumlin's least-covered contributions could prove to have the longest-lasting effect on the state: He has appointed many more judges, at all levels, than any previous governor in recent history.

After he selects a replacement for retiring Supreme Court Justice John Dooley later this year, Shumlin will have named three of the court's five justices — more than either Howard Dean, who was governor for 12 years, or his successor, Jim Douglas, who served for eight.

In addition, Shumlin has picked nearly half of Vermont's superior court jurists — 13 judges of 34, with two more vacancies left to fill before he leaves office. That means criminal defendants, families involved in custody disputes and civil litigants across Vermont are more likely to have their fates decided by a Shumlin appointee than a judge selected by any other governor.

Most of Shumlin's judges are young enough to remain on the bench for years or decades after he leaves office. They'll make crucial decisions in controversies over energy siting, school consolidation, child custody, opiate addiction, mental health treatment and other hot-button issues yet to emerge.

"One of the huge responsibilities any governor has is to give tremendous thought to who you appoint to the bench," Shumlin said in an interview. "With a little bit of a luck, they survive a lot longer than you do."

Shumlin, a former state senator who ran his family's travel agency, came to the office with little legal experience. The opportunity to leave an imprint on the court system "snuck up on me," Shumlin said. "I had never given it much thought until I became governor."

Observers say it is difficult to find a common denominator in Shumlin's choices: He has selected people from a wide variety of professional backgrounds and plumbed both big names and attorneys with lower public profiles.

Most of Shumlin's appointees to superior court spots spent their careers in the private sector: Compared to his predecessors, Shumlin selected relatively few candidates from the small army of prosecutors and government attorneys in the state.

He appointed prominent defense attorney Kevin Griffin, who was not widely known in political circles, to the bench in 2012, as well as Kirstin Schoonover, a staff attorney with Vermont Legal Aid — not exactly a traditional launching pad to a judgeship — in 2015. Shumlin has also chosen several private-sector attorneys who specialized in civil law.

Shumlin has put only two sitting prosecutors on the superior court bench: former Windsor County state's attorney Michael Kainen, a Republican who had served in the Vermont House of Representatives for eight years before he became a public lawyer; and former deputy Chittenden County state's attorney Mary Morrissey.

Shumlin said he places more stock in character than background and has sought to name judges who want to move away from crime and punishment and consider alternatives to incarceration.

Gov. Peter Shumlin - JEB WALLACE-BRODEUR
  • Jeb Wallace-brodeur
  • Gov. Peter Shumlin

"You can't read too much into where they came from," Shumlin said. "I'm more concerned about who they are. The first criteria has been compassion, common sense and folks who don't think that they're more important than the people who appear before them. I wanted judges with the courage to rethink how we are dealing with a huge segment of the people we're incarcerating."

Outside experts say Shumlin has generally stuck with a long-standing Vermont tradition of keeping political considerations out of the judiciary.

"I'm not sure governors necessarily pick people for the courts that match their political philosophy," said Montpelier attorney and former deputy secretary of state Paul Gillies, who is writing a history of the Vermont judicial system. "We've been fortunate in having judges that are apolitical and are going to follow the law and not be influenced by other factors. They're more judicial than they are political."

Governors do not have a free hand in selecting judges. An independent committee, the Judicial Nominating Board, solicits applications for judicial openings, interviews contenders and forwards a batch of finalists to the governor. The committee has 11 members who all serve two-year terms: three senators, three members of the House, three attorneys appointed by the Vermont Bar Association and two attorneys appointed by the governor.

The process generally leaves governors with a handful of names from which to select a judge for each opening, though governors have their ways of influencing the options — especially when, as is currently the case, his or her party has the majority of seats on the nominating board.

"I encourage people from time to time to apply," Shumlin said. "I don't always get the people I'd hoped I have."

Supreme Court appointments tend to get more scrutiny.

By the time he leaves office, Shumlin will have appointed four judges to the Supreme Court bench, but one of them, Geoffrey Crawford, left after only a year to become a federal judge. Shumlin's other two selections have been Harold "Duke" Eaton Jr., a former insurance lawyer whom Douglas had appointed a superior court judge, and Beth Robinson, Shumlin's former general counsel. Robinson's qualifications included standing on the other side of the bench on which she now sits, arguing successfully for the legalization of civil unions; Robinson went on to convince the state legislature to enact same-sex marriage.

In fact, the gay-rights activist might have qualified as a "political" pick, but the Vermont Senate confirmed Robinson unanimously. Unlike their counterparts on the nation's highest court, Vermont's Supremes do not get to select the cases that come before them. The issues they consider tend to be more practical than ideological.

As Gillies put it: "I don't know what the liberal position is on highway law or Act 250."

Broadly speaking, experts say Chief Justice Paul Reiber and Eaton are more conservative than Robinson and Dooley. Justice Marilyn Skoglund is less predictable. But most decisions issued by the Vermont Supreme Court tend to be 5-0 or 4-1, and the fault lines vary.

Describing it as an "odd court," Vermont Bar Association president Dan Richardson said he doesn't think Shumlin has altered the "essential balance" of the state's highest-ranking judicial body. "His appointments have maintained the status quo of what is a moderate to left-leaning court," he said.

One of Shumlin's final appointments is poised to be his most controversial.

Dooley, Vermont's longest-serving justice, will be remembered for his support of two groundbreaking decisions: One made Vermont the first state to legalize civil unions for same-sex couples, and the other established a school-funding scheme designed to level the playing field for poorer towns.

After 29 years on the high court, Dooley is also widely viewed as the court's dominant intellectual force and its most colorful questioner and writer.

"He definitely is the heavyweight," Richardson said. "He's got that mix of intelligence and massive experience."

Vermont judges reapply for their jobs every six years, whereupon a legislative board reviews and almost always reappoints them. But in September, Dooley declined to apply for a fresh six-year term and announced that he would step down in March — two months into the term of whomever is elected to replace Shumlin.

It led some to speculate that the new governor would name Dooley's replacement, but Shumlin quickly said he would make the appointment — something many people didn't expect the outgoing governor to do.

State Sen. Peg Flory (R-Rutland) who chairs the Judicial Nominating Board, announced that the committee would begin reviewing applications and attempt to send Shumlin a batch of finalists before he leaves office.

"I'm a little puzzled by the surprise," Shumlin said. "The statute clearly states if a judge resigns or chooses not to be retained, it's the governor's responsibility to choose a replacement. I'm just doing my job, as other governors have in the past."

In an interview, Dooley said he gave no consideration to which governor would choose his successor. He was facing a deadline of September 1 to apply for a new term. While he might have stayed on for another year or two, Dooley, 72, said he was unwilling to commit to a full term.

"I know I'm not going to want to do it for the full six years," Dooley said. "I might have done it a little while longer, but I don't think it's fair to tell someone I want to go forward."

Shumlin declined to discuss his preference for Dooley's successor. But the governor went out of his way to note that Dooley was one of former governor Madeleine Kunin's closest advisers, serving as her legal counsel and secretary of administration before she elevated him to the high court.

Shumlin's equivalent, former chief of staff Liz Miller, has come up as a possible successor to Dooley. Other names circulating in legal circles include Addison County State's Attorney David Fenster, Chittenden Superior Court Judge Helen Toor, House Speaker Shap Smith (D-Morristown) and Burlington City Attorney Eileen Blackwood.

Shumlin explained some of the challenges in choosing. "Justice Dooley will go down as one of the great justices in Vermont history," he said, but had he picked someone like Dooley to serve on the Supreme Court today, "it would be perceived as a political appointment and not on the merits."

Dooley said he believes whoever replaces him will win Shumlin's support based more on personal traits than their professional background.

"The one thing I sense ... I noticed it of Gov. Kunin, and it's true of [Shumlin], is the interview is very important to them," Dooley said. "They haven't been lawyers — it's not their world — but they want to get to know them personally."

He continued: "I came to the court not having been a judge and having an unusual career, and every one of my colleagues came from a different way, and I've come to appreciate that. The thing I most appreciate is, it's important to get people from different perspectives and career paths."