Members of Delaware’s Judicial Nominating Commission actively recruited attorneys who were viewed as potential candidates for the Delaware Court of Chancery’s vacant chancellor position and asked them to apply for the opening, according to sources familiar with the process.
Although some have said the calls were made because of concerns that only one candidate would apply for the judgeship, two former JNC members said that soliciting possible nominees was routine practice when they were on the commission.
JNC chair and former Chancery Court Chancellor William B. Chandler III and several other JNC members contacted individuals said to be strong candidates for the opening and encouraged them to submit applications, sources have told Delaware Law Weekly. In some cases, likely contenders received a phone call from a JNC member that was followed by a second phone call from Chandler. The contacted attorneys were also asked to suggest names of other possible candidates who might be a good fit for the chancellor vacancy, sources familiar with the process said.
The total number of contacted candidates is not known, but multiple sources used the phrase “a lot” to describe the number of phone calls made by JNC members. Others who were viewed as qualified for the position were also said to have been contacted on an informal basis.
Sources said David C. McBride of Young Conaway Stargatt & Taylor; former Superior Court judge and current Morris James partner Joseph R. Slights III; William M. Lafferty of Morris, Nichols, Arsht & Tunnell; and Widener University School of Law professor Lawrence A. Hamermesh were among those approached by the JNC. McBride did apply for the chancellor opening, while Hamermesh, Lafferty and Slights did not.
Chandler declined to comment and would not confirm whether such phone calls occurred.
McBride joined former JNC chair and Bouchard Margules & Friedlander managing partner Andre G. Bouchard as the only candidates for the judicial opening. Bouchard has been viewed as a heavy favorite for the position since former Chancellor Leo E. Strine Jr. was sworn in last month as state Supreme Court chief justice. In fact, as recently as early February, some had speculated that Bouchard could be the only candidate who would seek to become the state’s next chancellor.
The JNC submitted both candidates to Gov. Jack Markell for consideration as potential nominees. McBride and Bouchard are both are viewed as “strong candidates” and “well qualified” to be chancellor, according to attorneys who spoke with DLW.
Under the executive order establishing the JNC, the commission is expected to submit three names to the governor for each judicial opening, but it can submit fewer names if there are fewer applicants. Some in the Delaware legal community were said to be concerned that sending only one candidate to Markell would look bad for the judicial selection process.
Sources familiar with the process have said that the JNC has moved away from pursuing candidates in recent years but Chandler wants the commission to again actively recruit qualified individuals.
Former Delaware Supreme Court Justice Andrew G.T. Moore II, now an attorney at Gibbons P.C., was a JNC member from the late 1970s until he was appointed to the Supreme Court in 1982. He said that when he served on the JNC, calling potential candidates was a routine practice.
“We made a concentrated effort to encourage well-qualified individuals to apply for judicial openings,” he said. “It was a common practice and a good one, because it prevented one person from trying to dominate the list.”
Roderick McKelvie, a former U.S. District Court for the District of Delaware judge and current senior counsel at Covington & Burling’s Washington, D.C., office, served on the commission from 1983 until he was appointed to the district court in 1991. He agreed with Moore that attracting strong applicants for judicial openings should be among the JNC’s responsibilities.
“One of the JNC’s jobs is to encourage people to apply for judicial vacancies,” McKelvie said. “I don’t think it is unusual for members of the JNC to recruit qualified candidates. We wanted to give the governor three good candidates for each vacancy.”
On two previous occasions, the JNC submitted a single-name list to the governor for a judicial vacancy. In 1985, the JNC sent then-Gov. Mike Castle one candidate for a Chancery Court chancellor opening after former Chancellor Grover C. Brown stepped down from the court. Castle was said to have rejected the list and sent it back to the JNC asking for more candidates. The JNC then initiated a second call for candidates that resulted in more applicants. Castle then nominated William T. Allen, who applied during the second round, to become the next chancellor. Allen was confirmed and served on the court until 1997.
In 1994, only Carolyn Berger—now a state Supreme Court justice—applied for an opening after then-Gov. Tom Carper decided against nominating Moore for a second term. Carper accepted the one-candidate list and nominated Berger, who was confirmed by the General Assembly.
“Recruiting candidates gives the governor a much broader opportunity to make a much better decision,” Moore said. “It’s a good thing, because it gives the governor freedom to choose among well-qualified people and remove the issue from some pretty unpleasant politics.”
McKelvie agreed, adding that tapping individuals for judicial openings is good for the nomination process.
“It is often difficult to encourage good people to apply because they are open to public rejection,” he said. “The JNC can encourage people to take that risk to benefit the system. I think it is good that the JNC is soliciting candidates even when there is a situation where there are favorable candidates.”