Partisan Battle Shaping Up Over Judicial Picks

By Anita Kumar
Washington Post Staff Writer
Friday, February 8, 2008

RICHMOND, Feb. 7 -- The Republican-controlled Virginia House and Democrat-controlled Senate are locked in a battle over which party should pick replacements for open statewide judgeships.

A showdown is looming for Friday, when the chambers, which are being run by different parties for the first time since Reconstruction, must confirm two judges appointed by the governor, or the nominees will lose the posts. It would be the first major disagreement between the chambers since the legislative session began in January.

"I hope it doesn't come to that," said Sen. R. Creigh Deeds (D-Bath), a member of the Senate Courts of Justice Committee. "Too often, politics plays too big of a role in what is supposed to be a nonpolitical function."

Before the legislative session started, Gov. Timothy M. Kaine (D) appointed S. Bernard Goodwyn to the state Supreme Court. Goodwyn is the second African American to be named to the high court. Kaine picked former Prince William County Circuit Court Judge LeRoy F. Millette Jr. for a spot on the Court of Appeals, the state's second-highest court. Millette oversaw the trial of Washington area sniper John Allen Muhammad.

The judges have begun serving, although they must be confirmed by the House and Senate by midnight Friday. If they aren't, Kaine can re-appoint them, but not until after the legislature adjourns, which is scheduled for March 8.

Republicans are threatening to fail to confirm Kaine's picks unless they can fill the two other openings for judges with their choices. One spot each is open on the State Corporation Commission and the Workers' Compensation Commission.

"We're not going to get run over by the governor or the Senate," said Del. Terry G. Kilgore (R-Scott), a member of the House Courts of Justice Committee.

But House Minority Leader Ward L. Armstrong (D-Henry) said Republicans are "playing political games with people's lives."

Negotiations are largely taking place behind closed doors between Senate and House leaders and members of the Courts of Justice committees, which consider judicial nominees.

On Thursday afternoon, House Republicans and Senate Democrats met separately to discuss nominees for the four positions. The chambers are floating names but have not officially sent each other any.

For the State Corporation Commission, Democrats favor former Democratic delegate Barnie K. Day of Patrick County. Republicans are leaning toward Bernie McNamee, a lawyer and lobbyist from Richmond. Legislators have not settled on picks for the Workers' Compensation Commission.

"Kaine is a Democrat. So the people who he put on the bench are philosophically associated with him," said Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee. "We believe that we should have people that are philosophically associated with us who are judges."

In an interview Thursday, Kaine said that both of his appointments were "spectacular" and that they had proven track records on the bench. He said they were not political appointees.

"I'm certainly doing a lot of talking to both houses," he said. "There isn't any reason for any disagreement to intrude upon two people that all agree are well qualified."

The General Assembly does not have a formal way of picking judges, although it vets candidates. "Ideally, what we need to do is work out the process," said Sen. Ken Cuccinelli II (R-Fairfax), a member of the Senate Courts of Justice Committee.

In recent years, the Republican majorities in the House and Senate got together and agreed on names. But even when they ran both chambers, they often fought about nominees. This year, the disagreements are partisan and could influence other issues.

The Democrats took control of the Senate in November, but Republicans kept their majority in the House.

Democrats "need to understand -- we still control the House," said House Majority Leader H. Morgan Griffith (R-Salem).

Senate Majority Leader Richard L. Saslaw (D-Fairfax) and House Speaker William J. Howell (R-Stafford) have talked about the possibility that Goodwyn and Millette will not be confirmed. Saslaw declined to discuss his talks with Howell.

"We've gotten along well, but we haven't had any collisions yet," Saslaw said last week. Referring to the dispute over judges, he said, "Probably there is about to be one."

Howell said House and Senate leaders have had good conversations.

"We think we ought to have a say-so in the two other statewide judges. They're trying to say no, you don't have a say-so in that either," Howell said. "They'd like to have all four of them. We're trying to be fair about it."

Staff writer Sandhya Somashekhar contributed to this report.

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