Delaware Chancery Nominee Named Amid Intense Court Scrutiny (1)

The next judge nominated to the Delaware Chancery Court, Bonnie W. David, would join a tradition-bound bench that’s been the subject of unending scrutiny this year.

Sitting Chancery Court judges endured rare rebukes amid a swift political response to a novel ruling that contributed to doubts about Delaware’s corporate dominance. Extremely rich litigants like Elon Musk seized on those doubts to publicly disparage it. And meme stock traders and superfans have followed the objects of their affection to the court, sometimes bringing chaos to an already overwhelming caseload.

Add to all that a nomination during a gubernatorial changeover, with a confirmation hearing outside the normal legislative calendar, and there’s the potential for fireworks in a process that usually runs smoothly.

Accelerating the nomination for his replacement instead of waiting for the next legislative session to begin seems to follow the model set by lawmakers effectively rubber-stamping statutory changes—“the precedent of shoving things through, which is a terrible precedent,” said Charles Elson, founding director of the Weinberg Center for Corporate Governance at the University of Delaware.

Magistrate in Chancery

Term-limited Gov. John Carney (D) nominated David, who serves as a Magistrate in Chancery, to replace Vice Chancellor Sam Glasscock III, whose retirement takes effect in January. The Delaware Senate convenes Dec. 16 in a special session for judicial confirmations, a month before incoming Gov. Matt Meyer (D) takes office and the next legislative session begins.

Glasscock is vacating chambers in less-populated southern Delaware—a potentially difficult spot to fill, given the small pool of candidates and the even smaller number of attorneys who might forsake a lucrative private practice for a rural courthouse in Sussex County.

“It’s going to take a lot of skill to navigate this appropriately, such that you end up with a judge who can fulfill the mission of the state’s raison d’être—fair, balanced, neutral, and intelligent rulings that protect investors,” Elson said.

David’s nomination follows some Chancery traditions. The former corporate litigator at Skadden Arps once clerked for Glasscock, who also followed a mentor onto the Chancery bench.

Glasscock and Vice Chancellor Morgan T. Zurn also served in the position now known as Magistrate in Chancery, formerly Master in Chancery. The magistrates increasingly handle the guardianships, homeowners’ association conflicts, and property disputes that traditionally filled the dockets for Chancery judges.

David “has great common sense, a natural feel for equity, and compassion and respect for the litigants and counsel who appear before her. She has the best instinctive grasp of the role and duties of the trial judge of anyone I have ever known,” Glasscock said in an email Monday.

Harkening back to the Chancery Court’s English roots, Glasscock noted that a local motto in England’s Sussex County is “Sussex won’t be druv,” meaning its citizens have minds of their own and can’t be told what to do.

“When it comes to doing her duty, and calling cases as she sees them, Bonnie David won’t be druv,” he said. “In short, in my view, Governor Carney has never made a better appointment.”

David was “an outstanding attorney” for a decade at Skadden, said Paul Lockwood, head of litigation for the firm’s Wilmington office. “Her experience as a Court of Chancery litigator, combined with her subsequent work as a Magistrate, will make her ready for this role from day one,” he said in an email.

Diversity Dispute

With David’s confirmation, a majority of the Chancery judges would be women for the first time in its 232-year history. All seven current judges are White, as is David.

The lack of diversity in Chancery Court, and Delaware’s mostly White and male legal community overall, has been a focus in recent years. The first Black vice chancellor, Tamika Montgomery-Reeves, went on to become the first Black member of the Delaware Supreme Court; she now serves on the US Court of Appeals for the Third Circuit.

Chancellor Kathaleen St. Jude McCormick, the first woman to hold that position, has publicly decried Delaware’s struggle to get people of color into the judiciary “a black mark.”

Meyer has called for greater judicial diversity in Delaware. “The pending Chancery Court vacancy is an opportunity to address inequities and ensure that the court better represents the people we serve,” he said in a texted statement. “A judiciary that reflects its people strengthens trust in the legal system and ensures justice for all.”

Meyer spoke at a rally in April led by the Rev. Al Sharpton, who has partnered with an advocacy group backed by one of the court’s staunchest critics in assailing its lack of diversity, TransPerfect Global Inc. owner Phil Shawe. Delaware bar leaders have published a handful of op-eds over the last year in response to attacks on the Chancery Court from Shawe, who’s spent years trying to discredit a 2017 Chancery order for the company’s sale.

Larry Hamermesh, a retired Widener University Delaware Law School professor who specializes in Delaware corporate disputes, downplayed any links Meyer has to Shawe; the businessman backed a group that aired ads opposing Meyer’s primary opponent.

“The incoming governor is well aware of the importance to the state of preserving the viability and sustainability of its franchise, and knows that having good judges on the Court of Chancery and the Supreme Court are of paramount importance to that goal,” he said.

It’s hard at the Chancery level to address the judiciary’s lack of diversity, and it’s “really weird” to see Chancery Court nominations become political talking points, he said “It would be disappointing to me if the criteria for selecting a vice chancellor were to turn on political allegiance or leanings, as opposed to intellectual capability and familiarity with the subject that the court works in.”

Bloomberg Law is operated by entities controlled by Michael Bloomberg, who contributed $250,000 to a political action committee supporting Meyer during the governor’s race.