Published October 19, 2011 in the Times Argus
Beth Robinson listens during a news conference Tuesday, Oct. 18, 2011 in Montpelier, Vt. Gov. Peter Shumlin nominatedRobinson, who helped create the state's civil union's law and is now his general counsel, to fill an upcoming vacancy on the state Supreme Court. Robinson, who has been practicing law in Vermont for nearly 20 years, would replace retiring Justice Denise Johnson.(AP Photo/Toby Talbot)
Photo: AP PHOTO
Gay rights pioneer named to Vt. Supreme Court bench
MONTPELIER — The intellectual force behind a gay rights movement that led to the nation's first legislatively approved same-sex marriage law will serve as the next justice on the Vermont Supreme Court.
Beth Robinson, co-counsel in a landmark case that led first to civil unions and later to gay marriage in Vermont, will by late November fill the seat being vacated by retiring Justice Denise Johnson.
Gov. Peter Shumlin, Robinson's closest ally in the Vermont Legislature during the gay marriage debate, announced her appointment Tuesday afternoon at a press conference here. The Vermont Senate is expected to approve her nomination handily when the Legislature reconvenes in January.
“She is one of the most dedicated, hardworking, bright people in this great state and I can't tell you how privileged I am to nominate her for the Supreme Court,” Shumlin said.
It's the second time in less than a year that Shumlin has tapped Robinson for a high-profile, legal position. Almost immediately after his victory in the 2010 gubernatorial race, the first-term Democrat named Robinson, 46, as chief legal counsel of his Agency of Administration.
Robinson said she let Shumlin know during an interview then that she hoped “one day” to apply for the justice position.
“There is no one I know in Vermont who is more able to carry out justice for Vermonters, to be fair … and promote the greatness of this state than Beth Robinson,” Shumlin said.
Legal experts said Tuesday that Robinson's prominent role in passing watershed equal rights legislation is only one reason for her sterling reputation among members of the Vermont Bar Association.
In her 18 years practicing law at the top-shelf firm Langrock, Sperry & Wool, Robinson's star brightened as a result of work in workers compensation, family law, contract work and business cases. She graduated from Dartmouth College in 1986 and the University of Chicago Law School in 1989.
“She's really built up a reputation among the Vermont Bar as one of the smartest, most-skilled lawyers in the state, even apart from her work on the marriage equality issue,” says Cheryl Hanna, professor of law at Vermont Law School in South Royalton. “(Shumlin) gets a really, really intellectually smart lawyer, and I think that intellectual heft that (Robinson) brings to the court is something the court will benefit from.”
With no previous experience as a judge, Robinson's record on issues of jurisprudence is something of a blank slate. On Tuesday, she called herself a “pragmatist,” who will resolve legal dilemmas with an eye toward their real-life impacts on the lives of Vermonters.
“I see the Supreme Court as the place where the rubber meets the road and the concepts and ideas we call law intersect with the lives of real people,” Robinson said. “And I think it's a tremendous responsibility to fit those two together and do it in a way that's fair and consistent and within the rule of law.”
Asked whether her advocacy for gay rights issues will lead to charges of her being an “activist judge,” Robinson said the role she plays in the courtroom will be apart from the one she played as a leader of Vermont Freedom to Marry.
“I think there's a huge difference between my role as an advocate and my role as a judge,” she said. “My role as a judge really is first and foremost to uphold the rule of law, which is kind of this concept — it's an abstraction — but to do it in a way that recognizes the practical effect on people's lives.”
Hanna likened Robinson's appointment to a seminal moment in U.S. legal history.
“Symbolically, I think this may be not so different than when Thurgood Marshall was appointed to the U.S. Supreme Court,” Hanna said of the first African-American named to the Supreme Court. “We have a great civil rights thinker now becoming a decision-maker.”
By all accounts, Robinson's depth of knowledge in constitutional law is virtually without peer in Vermont. As co-counsel in the 1999 case Baker vs. Vermont, Robinson successfully convinced the Supreme Court that Vermont's marriage laws were unconstitutional because they deny same-sex couples the benefits that flow from state-sanctioned unions.
“The legal work that went into Baker v. State — it's a singular experience,” says Daniel Richardson, partner at the Montpelier law firm Tarrant, Gillies, Merriman and Richardson. “Very few lawyers in practice, let alone justices on the bench, have spent that kind of time preparing and researching and exploring these constitutional issues.”
Richardson, a contributor to SCOV Law, a blog that parses the nuances of Supreme Court of Vermont decisions, says Robinson's proficiency in constitutional issues may compel the court to embark on some more “adventurous” decisions.
“It'll be interesting to see if one of her roles on the court will be to get other members to go down that road of making more adventurous forays into what the Constitution means,” Richardson says. “A lot of attorneys that become judges or judges that become justices, they don't necessarily grapple with those complex issues in which you're taking a few words and trying to figure out their meaning in a sea of context. And she has experience doing that.”
David Sleigh, regarded as one of the state's top criminal defense attorneys, said it's been a while since the court has issued provocative rulings on issues of protection against search and seizure — an area that distinguishes the Vermont Constitution from its federal counterpart.
“There was a kind of flurry of activity there between the mid-1980s and into the 1990s, where the court was willing to expand certain search-and-seizure protections by using the Vermont Constitution as an independent legal authority,” Sleigh says.
Richardson says he's noticed the same trend.
“I have at least in the past year seen a real reluctance to get involved in the kind of distinguishing of taking Vermont constitutional rights and separating them from U.S. constitutional rights,” Richardson says.
In a recent case involving the search of a woman's purse, Richardson says, lawyers for the plaintiff asked the court for a decision that relied on the Vermont Constitution's loftier threshold for suspension of privacy protections than those written into the U.S. version.
“But the court really showed no interest in doing that,” Richardson says. “The court is moving in some respects away from that kind of aggressive jurisprudence.”
The Vermont Constitution predates by more than a decade the U.S. Constitution and is the guiding legal document on issues before this state's Supreme Court.
“It's an older original source and, by its very language, is more strident in protecting the individual liberties of citizens. It was the charter document for a republic,” Sleigh says.
Robinson's predecessor, Denise Johnson, also was appointed by a Democratic governor, Madeline Kunin.
While the conservative/liberal dichotomy used to frame assessments of U.S. Supreme Court justices doesn't fit well in Vermont, where ideological lines are more blurred, Hanna says, justices appointed by former Republican Gov. James Douglas — Chief Justice Paul Reiber and Justice Brian Burgess — tend to come down on the same side of issues.
“The balance in terms of appointees from Democratic versus Republican governors doesn't change,” she says.
Justices Marilyn Skoglund and John Dooley were appointed by former governors Howard Dean and Kunin, respectively.
“Not to say the court votes along party lines all the time, but I don't think Beth's appointment radically shifts jurisprudence one way or the other,” Hanna says.