Disagreement over nominees leaves Virginia Supreme Court shorthanded

June 11, 2011

— The Virginia Supreme Court, for the first time in recent history, sat for oral arguments last week with just five of its seven justices,as a legislative stalemate over nominees to the state’s highest court dragged on.

The Virginia General Assembly, one of only two state legislatures empowered to pick judges, has now spent months bickering over how to fill the two vacancies on the Supreme Court, leaving the tribunal unable to hear as many cases and forcing it to rely more on semi-retired senior justices.

The House of Delegates and the Senate, which are being run by different parties for the first time since Reconstruction, are feuding over which candidates would make the best judges and which chamber should wield more power in the process.

“It’s all politics,’’ House Minority Leader Ward L. Armstrong (D-Henry) said. “It’s not a good system. It’s not. But this is a political place.”

Del. David B. Albo, a Fairfax County Republican and chairman of the House Courts of Justice Committee, said the GOP-controlled House and Democrat-led Senate agree that each chamber should choose one Supreme Court justice.

But candidates preferred by both chambers now sit on the Virginia Court of Appeals. Elevating those judges would create a pair of vacancies on the appellate court, and the House and Senate cannot agree on who should fill those jobs.

Albo said Republicans should be able to fill both because the GOP controls both the governor’s mansion and the House. “When they had the governor’s office, they had the upper hand. They did this to us,’’ he said. “Now it’s our turn.”

Sen. A. Donald McEachin, a Richmond Democrat who is helping to negotiate judicial appointments, said Democrats should be able to pick one of two appellate judges. “To say they should get three out of four potential judgeships, that’s just not going to happen,” McEachin said.

Without an agreement on the likely Court of Appeals vacancies, the two sides remain effectively stuck on the Supreme Court openings, too.

Legislators in Virginia can select new judges as long as they are in session — either during the regular annual session, which concluded in February, or in one of the special, shorter sessions convened periodically to address one or two particular issues.

After failing to appoint any judges during the regular session this year, legislators returned in April and appointed a slew of lower court judges, including three new ones in Northern Virginia. But six circuit court judges and at least four general district and juvenile and domestic relations court vacancies were left open — along with the two seats on the Supreme Court.

Over the last several weeks, legislators have been back in Richmond repeatedly to work on drawing new maps as part of the once-a-decade redistricting process. The meetings have effectively kept the General Assembly in special session, but legislators haven’t made any more more judicial appointments.

If they adjourn, Gov. Robert F. McDonnell (R) is allowed to name justices to serve until the General Assembly returns for its regular session in January. McDonnell’s office has spoken to legislative leaders about how the governor would fill the openings and is preparing to solicit applications should the General Assembly adjourn, his spokesman Jeff Caldwell said.

Virginia’s judicial gridlock mirrors Washington’s. The federal judiciary, too, is riddled with vacancies because Democrats and Republicans have been unable to agree to confirm presidential nominations. U.S. Supreme Court Chief Justice John G. Roberts Jr. has warned that the vacancies have created “acute difficulties” for the judiciary.

In Richmond, operations of the state’s Supreme Court have been slowed while the General Assembly argues.

Generally, the court assembles as a full seven-member panel six times a year, hearing about 30 arguments during each weeklong sitting. Vacancies on the bench can sometimes be temporarily plugged by senior justices — judges who have stepped down from full-time service on the bench but remain available to hear cases. But the court’s four senior justices range in age from 71 to 94 and in recent months they have been asked to sit for six to 10 cases each per session, double their normal workload.

Stretched thin, the court agreed to hear fewer cases during their April and June sessions because of the vacancies, sitting for only four days each week rather than thecustomary five. Last week, 21 of the 24 arguments made before the court were heard by only five justices, an arrangement that hasn’t occurred in at least two decades.

The result, Sen. J. Chapman “Chap” Petersen (D-Fairfax) said, is to delay justice for litigants eager for a final answer from Virginia’s highest court. “I don’t want us to become like the District of Columbia, where it can take two or three years to get a ruling,” he said.

Noting that judicial appointments is a constitutional power of the legislature, Chief Justice Cynthia Kinser declined to comment on the General Assembly’s appointment process. “I respect that separation of power,” she said.

But asked whether it would be helpful for the legislature to solve their differences quickly and lighten the workload for the court and its aging retired members, Kinser said, “I think that’s obvious to everyone.”

The Supreme Court has been short-handed since January when Justice Lawrence L. Koontz Jr. retired following his 70th birthday, as required by law. Justice Leroy R. Hassell Sr. died in February.

The House wants to fill one slot with Court of Appeals Judge Elizabeth A. McClanahan. The Senate has settled on Judge Cleo E. Powell, the first African American woman named to the Virginia Court of Appeals.

The House wants to fill the potential appellate vacancies with Stephen R. McCullough, a senior appellate counsel with the attorney general’s office, and Glen Huff, founder of a Hampton Roads law firm where McDonnell used to work. The Senate wants to fill one slot with Kenneth Melvin, a former Democratic delegate who was appointed to the Portsmouth Circuit Court.

Albo said “law-and-order Republicans” deem Melvin too “aggressive for defendants.” McEachin said Democrats would accept any choice “within reason” if there was an agreement to split the appointments, though he said he would oppose McCullough because he lacks judicial experience.

In most states, voters elect judges or the governor appoints them, either making choices outright or nominating candidates who must be confirmed by the legislature, according to the American Judicature Society.

Virginia and South Carolina are the only states with legislatures that pick their judges.

In Virginia, the state constitution requires the General Assembly to select judges, but there is no formal process. In the past, the legislature’s majority party took control of the process.

But starting in 2007, for the first time in modern history, different parties controlled the Senate and House, with no preexisting agreements on how to share power.

This is the first serious clash over Supreme Court justices since then. In 2007, Gov. Timothy M. Kaine (D) temporarily appointed two justices to the Supreme Court while legislators were out of session. When they returned to Richmond, Republicans grumbled but agreed to elect his choices.

Last year, legislators easily agreed to select William C. Mims, a former attorney general and Republican legislator from Loudoun County widely respected by both parties, to fill a vacancy.

Researcher Magda Jean-Louis contributed to this report.

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