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Judicial retention

09/20/04 12:00AM By John McClaughry
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(HOST) Commentator John McClaughry is looking forward to the coming legislative session, and what he expects will be a lively discussion on the State Supreme Court and the Vermont constitution.


(McClaughry) One of the major debates of 2005 is likely to be whether the Supreme Court Justices shall be given new six year terms on the state's highest court.

The judicial retention process works like this: Judges file a statement of their desire to be reelected. The House and Senate each name four members to a Judicial Retention Committee. The committee interviews candidates, holds hearings, and reports. Then the members of the General Assembly vote to retain each judge, or not.

Since this process began in 1974, only one judge has been denied reelection. That was in 1993, and the vote was 86-87. In 1999, the last retention vote for Justices, Justice John Dooley was reelected but with 71 negative votes.

There is a large difference of opinion as to what grounds are necessary for denying retention. The constitutional provision gives legislators no guidance at all. The bench and bar are outspoken in the view that only manifest courtroom incompetence or lack of judicial temperament can justify a negative vote. The other side - let's call them populists - say with equal force that a Justice who in the opinion of a majority of legislators has violated his or her oath "not to do any act or thing injurious to the constitution" can and should be denied retention.

That latter contention naturally brings "the people" into the role of passing judgment on the merits of constitutional cases, like Brigham in 1997, that led to Act 60, and Baker in 1999, that led to the civil unions law. Almost all judges and lawyers vigorously contend that "the people" are not qualified to pass judgment on such high flown matters. Lots of "the people" say "the heck we aren't".

As the populists see it, "Look. The constitution is not the exclusive property of lawyers and judges. It's the fundamental agreement between the people and those they choose to govern them. If we the people develop a consensus that something in the constitution needs to be changed, we will make the change by the amendment process. We the people don't have to knuckle under and take it when judges install their personal preferences as constitutional rulings, and decree things that for 200 years no one ever suspected could be required by our constitution."

The debate between these sharply differing points of view on this very fundamental constitutional question ought to be very interesting.

This is John McClaughry - thanks for listening.

John McClaughry is president of the Ethan Allan Institute, a Vermont policy, research and education organization.
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