Gov. Josh Stein lost the latest court battle in his effort to claw back appointment powers the Republican-led General Assembly stripped from him weeks before he took office.
In a split decision this week along party lines, the state Court of Appeals overturned a three-judge panel’s ruling that had restored the governor’s power to fill judicial vacancies in the appellate courts with appointments of his choice.
Now if a vacancy occurs at the state Supreme Court or Court of Appeals, Stein must choose from a list of candidates supplied to him by the political party of the departing judge or justice.
Stein’s lawyers had argued that if the law was allowed to take effect, partisan insiders, not a governor who had won statewide election, would be choosing who fills critical seats on the appellate courts.
Republican judges John Tyson and Valerie Zachary disagreed and said the law should stand. Democratic Judge Allegra Collins wrote in her dissent that the governor might conclude that each of the party’s nominees is “unqualified” but “nonetheless must appoint one of them as long as they meet ‘constitutional prerequisites of age and bar membership.’”
The appeals court also ruled this week that lawmakers did not violate the separation of powers clause when they shifted the power to appoint Utilities Commission members to the state treasurer, currently Republican Brad Briner, and reduced the number of Building Commission members Stein could appoint.
It’s not clear whether Stein will appeal the decision to the state Supreme Court, which has a 5-2 Republican majority.