William Chandler
William Chandler ()

Gov. Jack Markell is not expected to immediately initiate a search for a candidate to replace outgoing Delaware Supreme Court Justice Carolyn Berger, according to the governor’s chief legal counsel. Berger’s departure is less than three months away, but attorneys within the state are already discussing who will be tapped to 
replace her.

“Because Justice Berger’s retirement is three months away, the governor has no immediate plans to begin the search,” said Andrew Lippstone, chief legal counsel to Markell.

William B. Chandler III, a Wilson Sonsini Goodrich & Rosati partner who heads the Judicial Nominating Commission, said he has not yet been informed of the governor’s plan to initiate the search process.
”We take our cue from the governor’s office and we have not received any indication on when the date for applications will begin,” he said.

Berger announced her retirement via a letter to the governor June 6, the same day Markell nominated Skadden, Arps, Slate, Meagher & Flom attorney Karen Valihura to replace retiring Justice Jack B. Jacobs. The timing of Berger’s retirement letter was surprising, but the justice told Delaware Law Weekly it was only a coincidence that she sent the notice on the same day as the Valihura announcement.

Court watchers who spoke to DLW have suggested that Berger’s husband, Superior Court Judge Fred S. Silverman, would also be retiring soon. However, Berger said Silverman has no imminent plans to step down from the bench.

“No, he does not plan to retire in the near future,” she said. “We make our plans as a family, but there is no rule that if I retire he has to retire.”

However, some have speculated Berger’s announcement may accelerate Justice Henry duPont Ridgely’s alleged retirement plans. It is widely believed among members of the Delaware legal community that Ridgely could announce his intention to step down from the court this fall. Legal sources have said Ridgely wants to time the announcement to coincide with his 30th anniversary of being appointed to the bench as a member of the Superior Court. Many have said that Ridgely wanted to schedule his letter to prevent Markell from calling a special session of the General Assembly. If Ridgely does send a letter to the governor in the fall, it would give Markell time to nominate a candidate and hold confirmation hearings when the General Assembly starts its new legislative session in January.

However, Lippstone confirmed that the timing of Berger’s announcement will require the governor to call a special session this fall anyway. Sources have said if the governor has to call a special session, Ridgely could decide to make his announcement soon so two judicial candidates could be confirmed during the meeting.

“In this case, the governor will call a special session between Labor Day and Halloween,” Lippstone said.

Ridgely did not return calls to his chambers seeking comment.

Although it is early in the process, legal sources say the most likely candidates for Berger’s vacancy are the candidates who applied earlier to succeed Jacobs.

The seven candidates who sought to replace Jacobs were Superior Court President Judge James T. Vaughn Jr.; Superior Court Judges Jan R. Jurden and Calvin L. Scott Jr.; Widener University School of Law professor Lawrence Hamermesh; Family Court Chief Judge Chandlee Johnson Kuhn; Grant & Eisenhofer attorney Megan McIntyre; and Valihura.

Other attorneys viewed as strong candidates for Jacobs’ seat, but who ultimately decided not to apply, could also be in the mix for the court’s latest opening. Those candidates include Young Conaway Stargatt & Taylor attorney David C. McBride; Joseph R. Slights III, former Superior Court judge and current Morris James partner; and Superior Court Judge Mary Miller Johnston.

If a dark horse were to emerge, some say that they will likely come from an attorney with a strong law enforcement background. Although sources did not mention a specific candidate, they said the attorney would have experience in the Attorney General’s Office, the Public Defender’s Office, or the Criminal Justice Council. The thinking is that such a candidate would be ideal if the governor believes Ridgely is definitely stepping down within the next year. Ridgely has the strongest criminal law background of any of the court’s justices when he was appointed in 2004.

Markell has a history of replacing a departing justice with a candidate who has a similar background. For example, Jacobs and former Chief Justice Myron T. Steele both had extensive corporate law experience. They were both replaced by current Chief Justice Leo E. Strine Jr. and Valihura, who had similar backgrounds. However, Berger, who spent a decade on the Chancery Court prior to her appointment on the Supreme Court, is also heavily steeped in corporate law. Some sources believe her replacement may also come from the corporate law bar.

Legal observers also split on whether they expect a large number of candidates to apply to succeed Berger. Some say that Jurden was widely presumed to be the favorite to replace Jacobs and certain interested candidates did not pursue the position because she was the presumptive nominee. It is not known why Jurden did not get the nomination or if recent criticism over her sentencing Robert H. Richards IV to probation for allegedly molesting his daughter influenced the governor’s decision.

If there is a frontrunner at this preliminary stage, some sources point to Vaughn. He has served on the Superior Court for 16 years, including spending the last decade as president judge of the court. Vaughn was also a nominee for the chief justice opening that eventually went to Strine. One factor in his favor is that Delaware tradition requires that all three counties be equally represented on the Supreme Court. Vaughn is from Kent County and that region has not had a representative since Steele retired last year.

Markell is said to view Jurden as a strong candidate for the Supreme Court, according to legal sources. However, some say that Markell may go with Vaughn to succeed Berger and save the Jurden nomination for later this year or early next year if Ridgely does leave the Supreme Court. 

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.