After a lengthy debate, the state Senate voted to confirm a former Orleans County prosecutor to the bench on Tuesday — but in a highly unusual turn of events for a gubernatorial appointment, multiple senators voted in opposition.

The 26-4 vote capped weeks of debate about Judge Jennifer Barrett, who served as state’s attorney in the Northeast Kingdom from 2015 until Scott appointed her to the bench last summer. (Because the Legislature was not in session at the time, Barrett has already begun her service as a judge, presiding over Windham Family Court in Brattleboro, Vt.)

Chief among the arguments made against Barrett — largely by defense attorneys — was that she was overzealous as a prosecutor and would be unlikely to handle cases in a fair and impartial manner as a judge. And, more controversially, they pointed to her public defense of her husband, Lewis Hatch, a former state trooper fired for a pattern of improper searches, usually of Black men.

But Barrett also had staunch allies, several of whom in particular praised her support for victims of domestic violence, and the Senate Judiciary Committee ultimately voted unanimously earlier this month to endorse her confirmation.

The opposition to Barrett’s confirmation has been highly out of the norm. The Senate Secretary’s office searched through records going back to 2000 at VtDigger’s request and could not find any examples of a gubernatorial nominee receiving votes against their confirmation on the floor. But many vote totals aren’t recorded — confirmations are usually such pro-forma affairs that senators often vote by voice rather than calling the roll, which requires each lawmaker to register their individual vote.

The votes in opposition to Barrett’s appointment were cast by Sen. Kesha Ram Hinsdale, D/P-Chittenden Southeast; Sen. Ruth Hardy, D-Addison; Sen. Irene Wrenner, D-Chittenden North; and Sen. Dick McCormack, D-Windsor.

The Senate Judiciary Committee held multiple hearings to accommodate Barrett’s supporters and detractors, and last Friday, the full Senate postponed a final up-or-down vote after Ram Hinsdale requested more time for Black Vermonters to weigh in.

Hatch’s actions as a state trooper were at the center of a landmark state Supreme Court case in which the court found in favor of Gregory Zullo, a Black man whom Hatch had pulled over. The case established the key precedent that the state could be held liable for unreasonable searches and seizures, and Vermont later settled with Zullo for $50,000.

Zullo himself wrote to lawmakers over the weekend to express his grave concerns. Barrett’s ascension to the bench means she will “preside over the futures and lives of people similar to myself who have been punished for exercising our so called unalienable rights,” Zullo wrote.

“I believe that if Barrett was to be confirmed, much of the work done in recent years enacted to curtail systemic racial bias here, would be sent back a decade ideologically,” he said.

State police fired Hatch in 2016, before the Zullo case was resolved, for repeatedly conducting drug searches without proper legal justification. He appealed that firing to the Vermont Labor Relations Board in 2017, and one of the three hearing officers on the case, Edward Clark Jr., also wrote to lawmakers over the weekend to detail Barrett’s involvement in the case.

The then-state’s attorney was present during all five days of the hearing, operated a video projector, organized documents, and consulted with defense counsel, according to Clark.

“Some of Ms. Barrett’s defenders take the position that she is not responsible for her husband’s actions. I agree,” Clark wrote in his letter. “However, she is responsible for her very public and vigorous defense of a dismissed and disgraced racist, bully police officer.”

The board unanimously upheld Hatch’s dismissal.

In a blistering letter, five Black religious and community leaders in Vermont also weighed in over the weekend to tell lawmakers that a decision to confirm Barrett would reveal their commitment to advancing racial equality to be hollow.

“Eradicating systemic racism in our state must include a concerted and proactive attempt to find

judges with proven sensitivity and experiences of impartiality toward all. In Jennifer Barrett, you have instead brought before us a candidate that reflects your complicity in sustaining the status quo,” they wrote in a joint letter. “Political leaders of this state pretend that Black lives matter, but this appointment and process prove otherwise.”

Barrett filed more charges per-capita than any other state’s attorney but one in 2021, according to data submitted to lawmakers by Kelly Green, of Randolph, a defense attorney highly critical of Barrett’s appointment. Ram Hinsdale argued before her colleagues that Barrett’s aggressive brand of prosecution had a material and harmful impact on people.

She pointed in particular to the case of Monica Donofrio, a Newport, Vt., woman initially charged with attempted murder. Donofrio, a woman of color, ran over another woman while driving away from a Newport parking plaza. She said she was in a panic after learning the woman, Emily Lussier, had called police after finding Donofrio’s children alone and crying in her car.

“I just want to be able to say that when we hear that someone’s ‘tough on crime,’ what that means to me is that they’re tough on people. They’re tough on people who have kids, and who have families and who might be deserving of a second chance,” said Ram Hinsdale, who, in the past, has spoken bluntly and emotionally on the Senate floor about her experiences with racial profiling by law enforcement.

Despite the weekend’s delay, Ram Hinsdale said that “Black Vermonters do feel really unheard in the decision that we’re about to make.”

But Senate Judiciary Chair Dick Sears, D-Bennington, read a letter from Barrett about the case in which she noted that, after learning about Donofrio’s mental health and trauma history, she’d agreed to a much lesser charge — over the objection of the victim and her family.

Critics of Barrett’s appointment have also noted that eight of the 12 superior court judges Gov. Phil Scott has appointed during his tenure have been prosecutors. But Sears argued that that was ultimately the governor’s prerogative.

“Has the governor appointed too many prosecutors? I probably agree with that,” he said. “But it’s his choice.”

Once they are seated on the bench, judges do have to come back before the Legislature’s Judicial Retention Committee for review after six years. But in practice, Hardy, who sits on the panel, told her colleagues that it’s “very hard” to remove a judge.

She had initially planned to vote to confirm Barrett on Friday, in large part because she agreed that it was “unfair” and “sexist” to fault the judge for her partner’s conduct. “Women are asked to apologize far too often for the bad behavior of men and that is not OK,” Hardy said.

But the letters she had received over the weekend had been specifically about Barrett and her decisions, Hardy said, and without additional time to vet them, the lawmaker argued her hands were tied.

“I had hoped that our Judiciary Committee would take this back into consideration and give us more information, but if that’s not going to be the case then I will have to vote no,” she said.

Senate Minority Leader Randy Brock, R-Franklin, who is Black, rose to object to the notion that “Black Vermonters” generally did not trust Barrett.

“There is no such thing as Black Vermonters who speak with a single voice,” he said. “Speaking of things that are racist — that’s racist.” And he argued that the letters received over the weekend mostly repeated arguments that had already been made, concerned Barrett’s husband’s actions, and offered no evidence of “abject discrimination on her part.”

The governor has consistently defended Barrett against her detractors, and in a statement Monday celebrated the Senate’s “strong, bipartisan” vote and praised Barrett’s “remarkable poise throughout this rigorous process.”

“Increasing diversity on the bench has been a priority for me over the last six years when making the twelve Superior Court Judge and three Supreme Court Justice appointments,” Scott said. “As Governor, I’m proud to have appointed more women than men to the bench to attain more gender balance, something that’s never been done.”

Barrett did not respond to emails seeking comment.

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