Posted: Oct. 16, 2012

PLEASE DO NOT TIP THE JUDICIAL BALANCE

By Celia Cohen
Grapevine Political Writer

Maybe someday something will go right with the Family Court seat where John Henriksen was turned into a judicial RINO -- Removed In Name Only -- but it is not happening yet.

As tortured as the effort was to let Henriksen hang around, not judging, until he can qualify for his pension 18 days from now on Nov. 2, the procedure for replacing him is also taking on a warped look.

It is like one botched job deserves another.

Henriksen is the non-judge who was ordered into judicial limbo in May by the Court on the Judiciary, which found he had compromised public confidence in the court system by pursuing an inappropriate romantic relationship with a lawyer who had cases before him and also secretly coaching her with legal advice.

Aside from the delay in getting Henriksen off the bench, the way to replace him should have been straightforward.

With Henriksen out of there, it meant the Family Court was missing a Republican judge in Sussex County. It just needed a new one.

This would take care of the constitutional requirement for political balance in the judiciary as well as geographical considerations.

The position was advertised by the Judicial Nominating Commission, the panel responsible for screening and recommending candidates to the governor, and the applications rolled in for this judgeship and other assorted court vacancies.

Then the bad vibes bubbled up. There were rumblings about the possibility of a constitutional end-run around the court system's political balance, which could be tipped if Democratic lawyers were to switch their registration to Republican and then be nominated by Jack Markell, the Democratic governor, and confirmed by the Democratic-run Senate.

How un-Delawarean. How far-fetched. How unreal when a list of candidates, forwarded from the Judicial Nominating Commission to the governor for the Family Court seat, was said to contain the names of three lawyers who were all struck by the same urge to re-register from Democrat to Republican.

Like the way to replace a non-judge is with a non-Republican.

The judicial nominating process is supposed to be confidential, but there was no chance under the circumstances these names would stay secret.

They are said to be Jennifer Donahue and Heather Williams, both lawyers with the state Office of the Child Advocate, and Theresa Hayes, a Family Court practitioner in the Law Office of Edward C. Gill in Georgetown.

Donahue, a Democrat since 2003, and Williams, a Democrat since 1998, both officially became Republicans on April 25, when voters were allowed to change their registration after a blackout for the presidential primary, according to voter registration records.

Hayes, who was a Democrat at least as far back as 1990, the earliest the registration records are available, became a Republican on Sept. 12. This was not until five days after the applications were due.

None of them returned a telephone call to explain their political epiphany. Oh well, the form going to the Judicial Nomination Commission only asks how the applicant is registered, not how long. Why get picky about political affiliation just because it is a constitutional requirement?

This is not to say any of them are unqualified for the bench, just kind of un-Republican.

Gary Simpson, the Senate's Republican minority leader, was not happy, although he stopped short of saying there was a full-blown Democratic conspiracy going on.

"I put a call into the governor saying this does not play well, and it won't play well if it comes forward. If it wasn't intentional, I wanted to give him a heads-up," Simpson said. "It's too coincidental for it not to be intentional at least on their [the applicants'] part."

Of all the judgeships, this is one that does not need more trouble. It does not seem like a good idea to compound a violation of the Delaware Judges' Code of Judicial Conduct with a violation of the state constitution.

It looks like Markell, who took an oath of office to uphold the constitution, including the part about the judicial balance, understands what is at stake.

"On Friday the governor asked for a supplemental list of names for the Family Court, and pursuant to the executive order, the governor can then select from the names on the original list or the supplemental list," said Michael Barlow, the governor's counsel.

The governor's office officially never confirms or denies the names sent along by the Judicial Nominating Commission, but why else ask for more?

Lady Justice and her scales have extra meaning here in Delaware. The judicial balance is not supposed to tip.

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