… exercise [its] authority to pass on only … the most qualified.” He urged the board to “truly limit the number of candidates to those most qualified to take on the very high responsibility of being a judge.” The practical consequence of the board’s change in approach has been that, where- as several years ago many (probably most) judicial applicants received letters telling them they had been found “qualified” and that their name would be forwarded to the governor, in the last decade most judicial applicants have received disappointing let- ters notifying them that their name was not sent up.
Another recurring phenomena, which at first blush may be perplexing, is the experi- ence some applicants have of being found “qualified” during one cycle but not dur- ing a later one. That is, an applicant might get a letter from one board telling them their name was sent up to the governor, and then receive the opposite result when applying for a subsequent vacancy. This can happen because every two years, the board’s make-up changes, and a candidate who is viewed as qualified by one board may not be so viewed by another. It can also occur because, whether fair or appro- priate or not, every JNB vote almost neces- sarily involves a relative comparison of all of
the candidates in the applicant pool. Since each pool is different, an individual’s out- come may vary from vacancy to vacancy depending on who else has applied. There may also be other circumstances that af- fect what qualities or experience a partic- ular board believes a candidate must have in order to be “qualified” for the particular vacancy before it.
Despite what might seem like an obvi- ous potential for politically-motivated deci- sions on individual applicants, I can honest- ly say that in all the time I have served on the board, I have rarely seen partisan pol- itics play any role in the decision-making process. Neither has it mattered to most board members, no matter their individu- al leanings, affiliations, or desires, whether an applicant works in the public sector or in private practice, for a big firm or a small one, for plaintiffs or instead defendants, or in civil or criminal law. I have been whol- ly impressed by how seriously the board members have taken their responsibilities, and how much time, thought, and dedica- tion they have devoted to the process. After the interviews and discussions, the board votes by secret ballot on each candidate. In order to be deemed “quali- fied,” the candidate must receive a major-
ity of the votes; anything less (including a tie) means that the applicant’s name is not forwarded to the governor. After the vote, a list of those candidates found qualified is transmitted to the governor. No statute or rule governs how long the list should be, and the number varies from vacancy to va- cancy. In recent years, the lists have been short. The number and identities of appli- cants on the list is confidential. By law, the governor must select from the board’s list. There have been occasions when gover- nors have attempted to reject the JNB’s list, or have asked it to re-open the pro- cess. Such gubernatorial actions have led to significant internal debate about how the board should respond. There are rumblings that, in the not too distant future, the legislature may revisit the current statutory judicial selection pro- cess. If that occurs, I would urge all attor- neys, with or without judicial aspirations, to become engaged in the dialogue. ____________________ John L. Kellner, Esq., practices in Burl-
ington with O’Neill Kellner & Green. ____________________ 1
4 V.S.A. §§ 601-603. 2 4 V.S.A. § 602 (c).
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THE VERMONT BAR JOURNAL • FALL 2013
www.vtbar.org
Vermont’s Judicial Application Process
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