By Anita Kumar
Washington Post Staff Writer
Sunday, May 11, 2008
RICHMOND -- The task of selecting judges for Virginia's courts led to an unprecedented level of squabbling this year in the General Assembly, dividing legislators by political party, chamber and geography.
Virginia and South Carolina are the only states with legislatures that pick their judges, which sometimes leads to conflicts such as those in Virginia, where the legislative session was filled with one impasse after another over the appointments. On many days, all other business ground to a halt.
Del. David B. Albo, a Fairfax County Republican and chairman of the House Courts of Justice Committee, which assists with judicial appointments, called this year's selection process a "total disaster."
The General Assembly completed its two-month session in March without filling three dozen judicial vacancies. Legislators returned for one day in April, working late into the night to fill some of the openings.
Still, a dozen seats were left open, including one on the powerful State Corporation Commission, which oversees utilities and insurance and some financial institutions.
Glenn Lewis, a prominent Fairfax lawyer and immediate past president of the Virginia State Bar, said legislators need to be "statesmen" and find a way to remove partisan politics from the selections.
"It hasn't worked recently," Lewis said. "And it's only going to get worse."
In most states, voters elect judges or the governor appoints them, either making choices outright or requiring the legislature to confirm them, according to the American Judicature Society.
In Virginia, the state constitution requires the General Assembly to select judges, but there is no formal process. As a result, the legislature's majority party tends to take control of the process and make choices with advice from legislators from the area that the judge will serve.
But this year, for the first time in modern history, different parties controlled the Senate and House, with no preexisting agreements on how to share power.
Republicans maintained control of the House, but Democrats took control of the Senate after a bitter, costly campaign last year. In the Senate, Democrats were slow to settle into their new position, and Republicans had to learn to cope with not having power.
"Every system is going to have hiccups, speed bumps," said Sen. Kenneth W. Stolle (R-Virginia Beach). "Hopefully, people will learn from what happened and what happened this year won't happen ever again."
For years, legal experts have debated whether to change the way judges are appointed in Virginia.
But although various commissions have studied the issue, most defend the Virginia system as better than the others. Many are particularly opposed to allowing judges to run for office because they would ask for campaign contributions and be questioned about where they stand on specific issues.
"It's a stupid, disastrous system that makes them political candidates," said Del. William R. Janis (R-Goochland), the House's negotiator on judicial selections this year.
But Gov. Timothy M. Kaine (D), some legislators and others say they want to change the system so that candidates are vetted by an independent commission and chosen on merit and not on other factors, such as whom they know.
In 2005, legislators filled an opening on the state Court of Appeals with Stafford Circuit Court Judge James W. Haley Jr. over Fairfax County Circuit Court Judge R. Terrence Ney, the choice of a bipartisan group of Northern Virginia legislators. Haley, a law school roommate of House Speaker William J. Howell (R-Stafford), was supported by Howell and then-Sen. John H. Chichester (R-Northumberland), the powerful Senate president and chairman of the Senate Finance Committee.
"The selection of judges in Virginia is highly superior to what most states do," Kaine said. "But we can make it better, and this year definitely showed that."
In some parts of the state, the local bar or a citizens review panel interviews and vets lawyers interested in serving as judges, sending a list of recommendations to local legislators. But in other parts of the state, that does not happen.
Many legislators want to duplicate the work of the Fairfax Bar Association, which for years has screened applicants and sent reviews to local legislators. Daniel H. Ruttenberg, president of the Fairfax Bar Association's board of directors, said legislators give considerable weight to the recommendations.
After local legislators agree on candidates, the list must be approved by each chamber's Courts of Justice Committee before the entire legislature can vote.
Carl Tobias, a professor at the University of Richmond School of Law, said the state needs to modify the system to "reduce politics and partisanship, which are bad for the General Assembly, courts and the public."
He and others say they would prefer a uniform, independent way of reviewing candidates from across the state.
About two-thirds of states have a merit-based system in which panels screen judicial candidates and make recommendations, according to the American Judicature Society. In South Carolina, the other state where the legislature selects judges, nominations must first be vetted by a committee.
While a state delegate, Virginia Attorney General Robert F. McDonnell (R) wrote a bill creating a panel to review judges' performance before they are reappointed. He said the state constitution makes the judicial process "inherently political" but legislators are later held accountable for their choices.
"It's not fair to judge the process by what happened in 2008,'' McDonnell said. "I think we'll get through this."
This year was complicated by disputes in Hampton Roads. Virginia Beach legislators accused a Norfolk senator of interfering in the local selection process, and many legislators across the state opposed the selection of a delegate's sister to the bench.
The General Assembly picked 23 judges, as well as one member to sit on the Workers Compensation Commission and three members to sit on the panel that reviews complaints against judges. Five of the circuit, general district and juvenile and domestic relations judges were from Fairfax County, Prince William County and Alexandria.
Along with the coveted seat on the State Corporation Commission, a dozen other judicial vacancies were not filled.
Legislators are again talking about debating some of the vacancies during their special session on transportation, set to start June 23.
If they do, Kaine would be left to appoint the circuit court judges and fill the corporation commission vacancy. President Bush has nominated Virginia Supreme Court Justice G. Steven Agee to the U.S. Court of Appeals for the 4th Circuit. If confirmed, that would leave another vacancy for him to fill.
Circuit court judges are tasked with filling the remaining lower court judicial vacancies.
All the appointments require confirmation by the General Assembly when it returns for its annual session in January.