Republican Lt. Gov. John Rodgers cast a tie-breaking vote in the Senate Tuesday to elevate a controversial nominee to Vermont’s highest court.
When Michael Drescher was appointed by Republican Gov. Phil Scott to fill a vacancy on the Vermont Supreme Court last month, he arrived to the confirmation process with what most Democratic lawmakers considered a disqualifying flaw.
As the acting U.S. attorney for Vermont, Drescher led the Trump administration’s high-profile prosecutions of two students, Mohsen Mahdawi and Rümeysa Öztürk, both of whom were arrested and detained by federal immigration authorities last year for their outspoken criticism of the war in Gaza.
During confirmation hearings in the Senate Judiciary Committee, Drescher told lawmakers that he took the lead on those cases to spare his assistants from the stain of association with President Donald Trump’s immigration crackdown. He also said it would be “unfair to conclude that I somehow personally supported the policies of the government simply because I was an advocate for those policies in court.”
“Would I have preferred somebody else to have been in the trenches in that case? Absolutely, but that would have been the wrong thing to do as a leader of the office,” Drescher said last month.
Those reassurances did little to win over the 17 Democrats in the Vermont Senate, all but two of whom voted to oppose his nomination Tuesday.
“At the end of the day, he did make arguments that were for the purpose of vindicating the unconstitutional detention of two individuals."Windham County Sen. Nader Hashim
Windham County Sen. Nader Hashim, the Democratic chair of the Senate Judiciary Committee, said that while Drescher hadn’t acted “in an unethical way,” he nonetheless sacrificed the public trust.
“At the end of the day, he did make arguments that were for the purpose of vindicating the unconstitutional detention of two individuals,” Hashim said.
Hashim said hundreds of Vermonters have reached out to him to oppose Drescher’s nomination, which he viewed as reason enough to deny Drescher one of five seats on the bench.
“The social contract between the government and the governed is increasingly fragile, and voting contrary to the many voices of Vermonters would only further contribute to that fragility,” Hashim said.
Bennington County Sen. Robert Plunkett, one of only two Democrats to join all 13 Republicans in support of Drescher’s nomination, cited preservation of that social contract as the reason for his “yes” vote.
Plunkett said he entered the nomination process eager to vote against Drescher.
“I wanted this to be the moment when Vermont stands up and says, ‘It stops here,’” he said. “I wanted to cast a vote that felt like resistance.”
But upon further reflection, and after a long conversation with Drescher, Plunkett reversed course. Had Drescher resigned in protest, Plunkett said, the Trump administration might have replaced him with a functionary who was “willing to bend the rules” in ways that prolonged the detentions of the students.
Plunkett said authoritarian governments rely on the corruption of institutions.
“That happens not just by installing loyalists, but by purging everyone who isn’t,” he said.
By “punishing” Drescher for performing his role in the legal processes that undergird democracy, Plunkett said, “we risk doing that work ourselves.”
Rodgers, who broke the 15-15 tie Tuesday, said Drescher “showed tremendous courage” and has been the subject of “unfair abuse by people in the public that don’t know all the facts.”
Rodgers said he recently had an hourlong phone conversation with Drescher.
“He explained he feared that if he resigned, that the Trump administration would appoint somebody like they have in other districts, who was highly partisan, and that would have been bad for the state of Vermont,” Rodgers said.
In a written statement Tuesday, Scott called Drescher “an exemplary public servant.”
The Senate also voted 23-7 Tuesday to confirm a second Supreme Court nominee, Christina Nolan, who ran unsuccessfully for the U.S. Senate as a Republican in 2022.
Nolan served as U.S. attorney for Vermont during Trump’s first term.
Justices can serve multiple six-year terms on the Vermont Supreme Court so nominations for the bench are rare. Rarer still, and perhaps unprecedented, is for two seats to become vacant at the same time.
