Delaware Gov. John Carney this year completed a historic reshuffling of the Chancery and Supreme courts, putting his mark on a years-long effort to reshape the judiciary that started under his predecessor.
Carney’s appointment of Morgan T. Zurn and Kathaleen S. McCormick to serve on the Court of Chancery filled two newly created positions on the nation’s pre-eminent business court and expanded the bench for the first time from five to seven judges.
The move represented a significant change in the composition of the 226-year-old institution, with a total of three women now serving alongside five men. But the appointments were also Carney’s first chance to put his own stamp on perhaps the most prominent part of Delaware’s judiciary.
Unlike Gov. Jack Markell before him, Carney has had little need to fill vacancies on the bench. In just over two years, Markell oversaw a drastic changeover in court personnel, appointing or reappointing more than 70 percent of the state’s judges and the entirety of the Chancery and Supreme courts.
In 2014, he named Chief Justice Leo E. Strine Jr. to lead the Supreme Court and take over the role of Myron T. Steele, who retired from the high court in 2013, and he picked Justice Karen L. Valihura to replace outgoing Justice Jack B. Jacobs in the summer of 2014.
Then came the announcement that Markell had chosen Justice James T. Vaughn Jr. to take the seat formerly held by Justice Carolyn Berger. Finally, he nominated Justice Collins J. Seitz Jr. to the bench in early 2015.
In the Chancery Court, he named Andre G. Bouchard chancellor in 2014 and appointed Tamika Montgomery-Reeves as only the second woman and the first African-American to serve on the Court of Chancery.
When Carney took office in January 2017, it appeared that the time for nominations was coming to an end. However, with the retirement of Randy J. Holland, Delaware’s longest serving Supreme Court justice, in 2017, Carney appointed Justice Gary F. Traynor to fill out the high court’s bench.
In 2018, lawmakers approved Strine’s budget request to fund two new judgeships on the Chancery Court, paving the way for the nominations of Zurn, a former master in Chancery, and McCormick, a former corporate litigator with Young Conaway Stargatt & Taylor to serve in Wilmington.
The moves came as Delaware appears to be shifting away from the traditional principles of maintaining geographical and political-party balance on the Chancery Court bench.
Though not required by Delaware law, governors have been careful to ensure that each of the state’s three counties is represented on the Chancery Court. Vice Chancellors Joseph R. Slights III and Sam Glasscock III represent Kent and Sussex counties, respectively; however, most of the court’s work is conducted in Wilmington, the state’s biggest city, where five judges are now expected to reside.
A federal judge earlier this year struck down a provision of the Delaware constitution requiring party balance on the court, a decision which is now on appeal before the Third Circuit.
Legal observers in recent years have questioned the rationale for maintaining party balance, and corporate law professor Lawrence Hamermesh said it may be time to retire the tradition altogether.
“If that’s a ship that’s sailing off into the sunset, I don’t have any complaints about the ride, but I’m not sorry to see it go,” Hamermesh told Delaware Law Weekly in October.