A constitutional amendment to give Delaware’s governor and senate more time to consider judicial nominations has been filed for the second leg in its adoption process.
Currently, the constitution provides the governor makes nominations and the Senate confirms for the state’s top courts (all but Alderman’s). Since 1977 every governor has used an advisory Judicial Nominating Commission. The governor and senate, however, are on a timetable:
- The governor must submit a name to the Senate within 60 days after the occurrence of a vacancy.
- The Senate, if in session, takes up the name. If not in session, the Governor must within 60 days convene the Senate to take up the nomination.
- If an incumbent judge remains in office, they can holdover up to 60 days after the expiration of their term.
SB 25 of 2017 would effectively extend these deadlines and allow for prospective appointments if a vacancy is set to occur; the current constitution is silent on the matter.
- The governor could submit a name to the Senate “from 30 days before to 90 days after” the vacancy happens.
- The Senate could also be called back into session “from 30 days before to 90 days after” the vacancy happens.
- Incumbent judges could holdover in office up to 90 days.
The constitutional amendment (then called SB 275 of 2016) was approved unanimously by both chambers last year. Under the state’s constitution, the legislature must approve it a second time after an election (2017/2018 session) and it does NOT have to go to voters for approval.