Berger
Delaware Supreme Court Justice Carolyn Berger ()

The Delaware General Assembly is set to hold a special session Oct. 8 to confirm a replacement for outgoing state Supreme Court Justice Carolyn Berger, according to Andrew Lippstone, chief legal counsel for Gov. Jack Markell.

Although Lippstone declined to speculate when Markell will send his nomination to the General Assembly, he did say Markell has blocked off time during the week of Sept. 8 to interview candidates.

The special session will also include a confirmation hearing to replace retiring New Castle County Superior Court Commissioner Michael P. Reynolds, Lippstone added.

A special session for the judicial confirmations was needed because Berger’s June 9 retirement announcement made it impossible for Markell to select applicants for confirmation before the legislature ended its 2014 session June 30.

Last month, the Judicial Nominating Commission issued a notice seeking nominees to succeed Berger and Reynolds. All interested candidates must submit their applications to JNC Chairman William B. Chandler III of Wilson Sonsini Goodrich & Rosati no later than noon Aug. 27. The JNC also requested that individuals who want to nominate a candidate write to the commission.

Although the application process has formerly begun, speculation about Berger’s successor remains the same as it did when the justice first announced her retirement. The leading candidates to have been talked about are Delaware Superior Court President Judge James T. Vaughn Jr., Superior Court Judge Jan R. Jurden and former Superior Court Judge Joseph R. Slights III, now a partner at Morris James.

A candidate can be a member of the Democratic Party because of the state’s requirement for overall political balance on the courts. Berger’s departure will leave the Supreme Court with three Republicans and one Democrat. Justices Henry duPont Ridgely, Randy J. Holland and Karen Valihura are Republicans. Chief Justice Leo E. Strine Jr. will be the court’s lone Democrat until Berger’s replacement is selected.

All candidates for the $191,860-per-year position must be citizens of Delaware and “learned in the law,” according to the application request. Once the application deadline passes, members of the JNC receive each applicant’s materials and reference checks are divided up among the commission’s 11 members, according to sources familiar with the process.

Typically, all candidates who apply are said to get an interview before the JNC. Applicants will receive one interview attended by all or a majority of the JNC members. The commission is said to schedule all interviews on the same day, but in the past it has scheduled interviews on multiple days when a large number of candidates have applied for a position.

The Delaware State Bar Association has a representative on the JNC who weighs in on each candidate’s qualifications, according to sources.

Berger is scheduled to step down Sept. 1. The justice had four years remaining on her term. She told Delaware Law Weekly in June that she was stepping down early because she did not think the governor took her seriously as a chief justice candidate last fall. Berger was one of four candidates who applied for the opening that eventually went to Strine.

“Obviously, there is a relationship between my resignation and having been passed over for chief justice,” Berger said earlier this summer. “Contrary to what the governor said in the press release, I haven’t broken a glass ceiling. As a person who has been on both this court and the Chancery Court, to not have been taken seriously as a candidate was disheartening.”

Lippstone has denied Berger’s claims.

“Gov. Markell took Justice Berger’s application seriously,” Lippstone said in a June DLW interview. “The governor carefully reviewed each application for chief justice and conducted an in-depth interview with every candidate. At the end of that process, the governor chose the candidate who was most qualified and had the clearest vision for leading Delaware’s court system for the next 12 years. The governor believes he made the right choice.”

Under Delaware’s constitution and an executive order signed by Markell in 2009, the governor must provide notice of an impending judicial vacancy to the JNC’s chairman or chairwoman within 60 days of receiving a judge’s resignation. Once Markell has provided notice to the chairman or chairwoman, the JNC must submit to the governor a list of at least three names for the open position within 60 days of the judicial vacancy.

While an Oct. 8 confirmation date would fit squarely in the 60-day window, it would leave the Supreme Court short one justice for at least two months. A candidate confirmed Oct. 8 would still have to wait until his or her swearing-in ceremony before he or she can start adjudicating cases.

However, it is unlikely that being short-staffed will impact the court. A large portion of the court’s docket is decided by three-judge panels. If the need for a rare en banc hearing arises, a retired state Supreme Court justice or an active justice on another court can sit by designation under Article IV, Sections 12 and 38 of the Delaware Constitution and Supreme Court Rules 2 and 4(a).

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