Delaware Supreme Court Justice Jack B. Jacobs
Delaware Supreme Court Justice Jack B. Jacobs ()

Seven candidates have applied to succeed Justice Jack B. Jacobs on the Delaware Supreme Court, according to sources familiar with the process. The candidate list is a diverse group of judges, lawyers in private practice and one law professor.

The candidates are said to be 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; Skadden, Arps, Slate, Meagher & Flom attorney Karen L. Valihura; and Grant & Eisenhofer attorney Megan McIntyre.

Several sources had identified Superior Court Judge Mary Miller Johnston as a candidate, but she did not apply. Other names said to be possible applicants for the position who also did not apply include Young Conaway Stargatt & Taylor partner David C. McBride and Joseph R. Slights III, a former Superior Court judge and current Morris James partner.

It is not surprising that a majority of the applicants are women. Sources have said Gov. Jack Markell is interested in adding another woman to the Delaware Supreme Court to show his commitment to diversity. Only one woman, current Justice Carolyn Berger, has ever served on the court.

Some legal analysts were surprised that three of the applicants—Valihura, Scott and Kuhn—are Republicans. Markell could appoint someone from either party because Jacobs’ departure leaves the court evenly divided between both parties. Markell, a Democrat, has always appointed someone from his own party, even when he has had the freedom to reach across the aisle.

Sources are split on whether Jurden will be the likely nominee. She was viewed as a strong candidate for the recently vacant state Supreme Court chief justice opening. After Markell nominated current Chief Justice Leo E. Strine Jr., many said Jurden was a shoe-in for the next opening on Delaware’s highest court.

However, Jurden found herself at the center of a controversy in March after it was revealed that she had sentenced a descendant of the du Pont family, Robert H. Richards IV, to probation for molesting his daughter. Since details of the 2009 sentencing became public, Jurden has received threats and roughly 10 protesters picketed outside the New Castle County Courthouse in April, demanding her resignation.

Several current and former state public officials, including Strine, have publicly expressed support for Jurden, saying the backlash against her is misplaced. Many in the legal community have noted that she faced the unenviable choice of having to force the 5-year-old daughter to testify in a public trial about traumatic events that occurred when she was 3 years old or sentence Richards to probation, because without the daughter’s testimony, there was no evidence against him.

Jurden’s supporters concede that there could be some backlash if she were to be the nominee. Legal analysts who predict that she will be the nominee say there are several factors that could weigh in her favor. Markell is not seeking a second term, so if some voters are upset over the nominee, he will not feel heat at the ballot box. In addition, Jurden is a lesbian and the possibility of adding both a woman and a member of the LGBT community will appeal to Markell’s commitment to diversity. The sources who spoke with Delaware Law Weekly also think Richards’ case will have faded in people’s memory by the time the late June confirmation hearing is scheduled to occur.

However, some legal analysts contend that Markell may not select Jurden because 10 of Delaware’s 21-member Senate is up for reelection in 2014. The analysts said the senators may be hesitant to confirm Jurden, fearing backlash in the November elections. If that’s the case, Markell may select a different nominee to avoid the embarrassment of not having a judicial nominee confirmed.

DLW contacted several state senators last month to gauge the possibility of confirmation if Jurden were to be nominated. The majority of senators declined to answer the question. At the time, it was not known whether Jurden would apply for Jacobs’ seat, and the senators said they did not want to influence the process.

However, two senators who did speak with DLW, Sen. Karen E. Peterson, D-Stanton, and Sen. Robert L. Venables Sr., D-Laurel, both offered enthusiastic support.

“I believe she would be confirmed by the Senate,” Peterson said. “We all know Judge Jurden and we just reconfirmed her last year. I had an opportunity to spend a day in her Mental Health Court and I was quite impressed with her. I think other people in my caucus believe she got a bum rap.”

Scott, who is African-American, is also said to be well qualified and would also demonstrate the governor’s commitment to diversity. If nominated and confirmed, he would be the first African-American to serve on that court. He has had a distinguished 11-year career on the Superior Court and was described as a hard worker.

Other names viewed as interesting candidates are Valihura and Hamermesh because of their corporate law background. Jacobs, who spent 18 years on the Delaware Court of Chancery, was viewed as one of the foremost authorities on Delaware corporate law. With Strine, a former Chancery Court chancellor, now leading the Supreme Court, many say Valihura and Hamermesh could help counterbalance his strong views on corporate governance.

Vaughn is also viewed as a strong candidate. 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. But he also recently generated controversy when he asked the Supreme Court to change an opinion in order to distance his court from a recently retired judge’s ruling.

Legal analysts said they don’t think Vaughn’s actions will impact his candidacy. 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 former Chief Justice Myron T. Steele retired last year.

Steele, Jacobs and Berger all represent New Castle County, while Justices Henry duPont Ridgely and Randy J. Holland are from Sussex County. Some analysts said they could see a scenario where Markell appoints Vaughn, the only candidate from Kent County, to the court and waits to appoint another justice from either New Castle or Sussex County. 

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