Markell’s Supreme Court, and a Missed Opportunity.

Nothing explains the Delaware Way more than the recent nomination to the Supreme Court by Gov. Jack Markell (D) of corporate attorney and the son of a former Supreme Court Justice, Collins J. “C.J.” Seitz, Jr., Esquire. Seitz, when confirmed (because there is no if about it in this state), will replace retiring Justice Henry duPont Ridgely.

Seitz is the founding partner of Seitz, Ross, Aronstam & Moritz law firm, and has specialized in corporate, commercial, and intellectual property cases for over 30 years. […] Seitz earned his law degree at the Villanova University and lives in New Castle.

Seitz’s father, Collins J. Seitz Sr., also served on Delaware’s Supreme Court, as well as the U.S. 3rd Circuit Court of Appeals. While a vice chancellor of Delaware’s Court of Chancery in 1952, the elder Seitz handed down the order that desegregated Delaware’s schools.

But DD, you say, he seems like a qualified and exceptional attorney, so why the reference to the Delaware Way? I suppose its the corporate law background and the “pedigree” angle. Especially when you consider that there might have been a more compelling choice available. The Judicial Nominating Commission, in addition to Seitz, also recommended to Governor Markell Superior Court Judge Calvin Scott, who would have been the first African American Supreme Court Justice on the Delaware Supreme Court; and a former Superior Court judge and now an attorney in private practice, Joseph Sleights III.

I think the Delaware Supreme Court could have used a little color, and something more diverse than another corporate attorney. Let’s look at the Court, an institution remade by Governor Markell during his six years in office. The Delaware Supreme Court has five justices. After this nomination of Mr. Seitz, all of the court’s five members have either been appointed by Markell (new Chief Justice Leo Strine, Jr., new Associate Justices Karen Valihura, Jim Vaughn, Jr., and Collins J. Seitz, Jr.) or reappointed for another 12 year judicial term (Associate Justice Randy Holland).

Chief Justice Leo E. Strine, Jr. was previously the Chancellor of the Court of Chancery since June 2011 and as Vice Chancellor since 1998. The Court of Chancery is the well regarded “business” court that is one of the selling points attracting corporations to headquarter in Delaware. Chief Justice Strine was a Senior Fellow at the Harvard Program of Corporate Governance, a Special Judicial Consultant to the Corporate Laws Committee of the American Bar Association, and a former corporate litigator at Skadden, Arps, Slate, Meagher & Flom. So plenty corporate law experience with our Chief Justice.

Justice Randy Holland has been on the court since 1986, and, having been reappointed in 2011, could be on the Court until 2023, a remarkably long 37 years, and he still looks like one of the younger Justices. Prior to this nomination and service on the Court, Justice Holland was a partner at Morris Nichols in Wilmington. Justice Karen Valihura was a partner at Skadden, Arps prior to her confirmation, where she practiced in complex commercial and corporate issues, like state securities fraud claims, mergers and acqui sitins and fiduciary duties of corporate directors, since 1989. Justice Valihura has also served on the Advisory Board of the John L. Weinberg Center for Corporate Governance and on the Corporation Law Council of the Corporation Law Section of the Delaware Bar. Justice Jim Vaughn, Jr. is perhaps the exception to the rule, as he does not have a corporate law background. He was a Superior Court Judge since 1998, and before that, a Dover attorney practicing in general civil and criminal law at the firms Vaughn & Vaughn and Schmittinger and Rodgriguez.

So, without Seitz, the Court would not have suffered for a lack of background in corporate law. Markell could have taken a chance and gone with Judge Scott. Why he did not most likely comes down to another Delaware Way Ridiculous Rule: the court has to politically balanced, which is kinda impossible when you have a court with an odd number of justices. Article IV, Section 3 of the Delaware Constitution requires the following:

First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

Fourth, at any time when the total number of Judges of the Family Court shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.

Fifth, at any time when the total number of Judges of the Court of Common Pleas shall be an even number, not more than one-half of the Judges shall be of the same political party; and at any time when the total number of Judges shall be an odd number, then not more than a majority of one Judge shall be of the same political party.

First, this is ridiculous. If you want Republicans selected for the state judiciary, elect a Republican Governor to appoint them and a state Senate that will confirm them. The State Constitution or the State Judiciary should not serve as a political party protection racket.

But it probably explains Markell’s move. Chief Justice Strine and Justice Vaughn are Democrats. Justices Holland and Valihura are Republicans. So the Court is balanced between the parties as required by the Constitution and Governor Markell was free to chose who he wanted. Retiring Justice Ridgely was a Republican, so replacing him with a Democrat and thus flipping the balance of the Court from 3-2 Republican to 3-2 Democratic was enticing. But appointing the first African American Justice would require appointing another Republican, since Judge Scott is a Republican, which Messrs. Seitz and Slights are Democrats.