by John L. Kellner, Esq. Vermont’s Judicial Application Process Any attorney seeking a Vermont Su-
preme or superior court judgeship (or a po- sition as a family court magistrate or on the Public Service Board) must apply to, and appear before, the Judicial Nominating Board. It is the JNB’s responsibility to de- cide whether to send a judicial applicant’s name to the governor for possible appoint- ment.
I have had the privilege of serving on the JNB since 2001 (with one two-year break in the middle). I am frequently struck by how little is publicly known about this board. In part, this may owe to the fact that, by law, the JNB’s proceedings are confidential. Still, there is much about the process that need not be so mysterious. When the Vermont Legislature creat- ed the JNB,1 it tasked it with the author- ity to screen judicial applicants. The JNB has eleven members. At least six are sitting members of the legislature (three designat- ed by the Senate and three by the House). By statute, these designees must include different political parties, and no more than two of the six can be attorneys. As for the five remaining JNB members, the gover- nor appoints two (who by law cannot be at- torneys), and the Vermont bar elects three attorneys. Accordingly, non-lawyers al- ways outnumber lawyers, sometimes over- whelmingly. Each member serves a two- year term, and most are limited to three consecutive terms.
Whenever a judicial seat opens, the gov- ernor mobilizes the JNB. Once mobilized, the JNB chair (elected by the other board members) electronically announces the ju- dicial vacancy to all Vermont attorneys, and invites them (and, in the case of a Supreme Court vacancy, trial court judges) to ap- ply. The application deadline is usually four weeks from the notice of vacancy. There are few restrictions on who may apply for a judgeship. The only statuto- ry requirement is that the applicant have practiced law (or served as a judge) in the state of Vermont for at least five of the ten years preceding their appointment. Judi- cial applicants must fill out an extremely comprehensive (some might say onerous) form that includes information about their past experience, their views on the state of the judiciary, and a full financial disclosure. The application also asks applicants to list references.
After the deadline has passed, the JNB chair distributes a copy of every single ap- plication to all JNB members, assigning each primary responsibility to reference- check a certain number of the applicants.
www.vtbar.org
This includes calling the listed references, but can also involve speaking about the applicant with others (although the pro- cess, including the names of all applicants, is confidential, the board’s rules specifical- ly permit such inquiry). In addition to re- viewing the application forms and check- ing references, the board also runs criminal record and professional disciplinary action checks on all applicants.
The next step for an applicant is a per- sonal interview. By rule, all candidates have a right to be interviewed, so with rare ex- ception, if you apply for a judgeship you receive an interview. During my time on the board, there was one instance when the sheer volume of candidates made the prospect of interviewing every applicant so daunting that a board subcommittee pre- screened the applications. After doing so, the JNB notified several applicants that a personal interview was unlikely to result in their name being sent to the governor, and suggested to them that they waive their right to an interview or withdraw their ap- plication. Nevertheless, even then, any ap- plicant who requested an interview was granted one.
The interview protocol itself has re- mained fairly consistent over the years. First, any JNB member who has a person- al or business connection to any applicant, such as might influence or appear to in- fluence their vote, must report that to the board’s chair, and may then recuse themself (or be recused) from further consideration of the candidate. After any such recusals are addressed, each candidate is brought in for a personal interview with the full board. The interview typically lasts twen- ty to thirty minutes. Each JNB member has the opportunity (but is not required) to ask one question of each applicant. The range of questions is so broad that it is impossible even to generally characterize them. The applicant’s performance in the in- terview can be critical. Few judicial appli- cants have recent experience interviewing for a job. As a consequence, and with so much at stake, many accomplished attor- neys and judges, understandably nervous during the interview, may not perform as well as they had probably hoped. The three JNB members who are elected by the bar (and those legislative members who are at- torneys) often personally know many of the candidates, or at least have some familiar- ity with their work or general reputation. But many of the other board members may not know anything about most of the can- didates. As such, and for better or worse,
THE VERMONT BAR JOURNAL • FALL 2013
the impression made by the candidate dur- ing this twenty to thirty minute interaction can significantly affect the outcome. After every candidate is interviewed, the
board discusses each one in order to fulfill its statutory charge of determining which are “qualified” for the judicial position sought. In performing this task, the JNB has scant guidance. 4 V.S.A. § 601(d) tells us that in determining whether a candidate is “qualified,” we should consider their “in- tegrity, legal knowledge and ability, judicial temperament, impartiality, health, experi- ence, diligence, administrative and com- municative skills, social consciousness, and public service.” And we are further told when we are screening for trial court po- sitions that we must give “particular con- sideration … to the nature and extent of [the applicant’s] trial practice.”2 By board rule, we must not consider any candidate’s race, religion, gender or political affiliation. Beyond these guidelines and strictures, the JNB is left to its own interpretation and dis- cretion as to what makes a candidate quali- fied for a particular judicial post. There can be no disputing that “quali- fied” is a subjective term. It is fair to say that during my tenure on the JNB (and I have served on six different iterations of the board, since the membership has changed every two years), there has been something of a sea change in the way the board has interpreted that term and has executed its screening role. The first board I sat on (and apparently many of its prede- cessors) took what some might regard as a relatively hands-off approach, setting a lower bar for applicants to meet. Over the last decade or so, the board has more ag- gressively narrowed the pool. Reasonable minds can differ about whether, as a matter of policy, philosophy, or statutory interpretation, this shift in ap- proach has been justified or wise. Some may feel that it is not the board’s preroga- tive to winnow the applicant pool, and that the governor should have free range to se- lect from all candidates who have general- ly comported themselves well. Others feel differently. For example, superior court judge Matthew Katz, in a letter sent to the board some years ago, urged the JNB to be more effective in carrying out its screening. He wrote that “it is neither a dark secret nor an opinion confined to me that some- times the long lists [of applicants deemed by the JNB to be qualified] have resulted in unfortunate appointments.” In his view, “it is vital to the long term quality and effec- tiveness of Vermont justice that the Board
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