There is a natural tendency to grade legislatures on bills passed rather than bills beaten, but the rejection of a legislative proposal often is a significant reaffirmation of things as they are or at least a good indication that the pressures for change are weak.
Such was the case when the Virginia General Assembly recently turned down a thoroughly debated proposal for a modest change in the way state judges are chosen.
The Assembly elects judges now. The defeated bill would not have changed that, but would have established a 15-member judicial nominations commission of lawyers and nonlawyers appointed by the governor to seek out good judicial candidates and recommend them to the legislators. The statewide commission would have drawn on the advice of local boards in each judicial circuit.
Curiously, the proposal drew its support from members of the legislature and bar that have strong influence over the choice of judges now and was defeated by a single vote in the State Senate because of opposition from nonlawyers who have relatively little influence over the choice of judges.
Eight of the nine nonlawyers in the 40-member Senate were present when the nominations commission bill was beaten, 20-19, and six of them voted against it.The Senate's only black member, L. Douglas Wilder, a Richmond Democrat and a lawyer, also opposed it.
All of these opponents of the bill said they prefer to take their chances with the direct political influence they now have with their Senate vote rather than risk seeing that influence blunted by the recommendations of lawyer-dominated commissions.
Four of the five black judges in the state have come to the bench without the endorsement of bar associations in their districts, and Wilder told the Senate in plain terms that black judicial candidates have a better chance in a political process than they do at the hands "of blue ribbon commissions."
Clearly, one of the impediments to approval of the commission was the fact that no persuasive senator stood up to damn the present system. To the contrary, every proponent of a nominations commission praised the state bench and the system that produced it.
The proponents said their commission would make a splendid judicial selection system better. That's like calling for better oatmeal while declaring that the bowl before you is piping hot and absolutely devoid of lumps. It's not the kind of argument that moves the Virginia Senate to action, especially when traditional relationships between legislators, judges and bar assocations are at stake.
The present system has some obvious faults, but they lie more in execution than design. Any attack on it would require legislators to criticize the performance of their colleagues, a thing that does not often happen.
A high percentage of judges chosen by the Assembly have close relationships - professional, political or personal - with Assembly members, but no one mentioned that in the Senate debate.
The real election of judges takes place in the Democratic caucuses of each house, where its members are pledged to support the winner in the formal election by the full House and Senate. It has been obvious, when these caucuses are opened to the press, that only a few legislators have any knowledge of the judicial candidates, and the rest are indifferent to the choice of judges who serve outside their legislative districts.
Not surprisingly, no Democrats criticzed the operations of the Democratic caucus and the tiny Republican minority muted its criticism for fear of endangering the nominations commission, which it supported.
There are only oblique allusions to problems with the present way of choosing judges. Sen. Madison Marye (D-Montgomery), said, "The fact that this bill is before us shows that there are many among us whose conscience is not quite comfortable."
Marye, who is not a lawyer, lost a fight this year to elect a judicial candidate in his district against an opponent backed by the local bar associations. "When I was little boy," the colorful Marye said, "I always wondered what the preacher meant by crossing the bar. Now I know."
Marye, however, was one of those who chose to stick with the present system and take his chances with politics of judicial selection.
One of the strongest supporters of the commissions was Sen. J. Harry MIchael (D-Charlottesville). Michael is a solid member of the Senate club and the legal establishment in Virginia. He praises the quality fo the Virginia bench and says the present selection system works well.
Michael, however, said he wanted the commission to bring into play "a mechanism that is outside state government" and to "respond to the layman, to bring him into the process."
Sen. Joseph V. Gartlan (D-Fairfax) argued on the Senate floor that bringing laypersons into the process would not improve the quality of the bench, but would strengthen public confidence in the state'judges.
Michael agreed in an interview that the commission might increase public confidence, and also said the expertise of business executives and others who come into courts as parties in cases but not lawyers should be brought to bear on the selection of judges. "A lot of them know as much as thelawyers about what goes on in our courts," he said.
However, none of these lay experts or members of the public with wavering confidence in the courts came forward. There was no pressure on anyone for change. The debaters were lawyer-legislators who publicly find little fault in the present system and legislators outside the bar establishment who are willing to make the best of the present politics of choosing judges.
So nothing happened.