A solid legal reputation is essential for a lawyer who wants to become a federal judge in Virginia. It also has helped considerably to have a brother in politics, a friend in the U.S. Senate, a good record on the state court bench, or an IOU in the White House.
Despite provisions in the U.S. Constitution designed to isolate federal judges from politics - lifetime appointments and guaranteed salaries being the two main provisions - the process of selecting a federal judge is inevitably an intensely political process.
It is a process that confirms the advice to aspiring judges given in 1972 by Harold W. Chase, who wrote in his book "Federal Judge - The Appointing Process":
". . . Get active in the party of your choice and I mean active. Start young - right away. Devote a lot of time to it. Ingratiate yourself by your activity with your party's senatorial candidates and work very hard for likely presidential nominees and for presidential candidates once nominated. In addition, work as hard as you can to acquire a reputation as a good sound lawyer, preferably as a corporation lawyer."
The role of politics in the selection of federal judges in Virginia may change, however. Congress is nearing passage of legislation that would create about 100 new U.S. District Court judgeships, including at least three in Virginia. The state's senior senator, Harry F. Byrd Jr., a Democrat-turned-independent, has, at President Carter's request, set up new judicial selection commissions in the state's two judicial districts. The commissions will recommend candidates for judgeships to Byrd, who will make final recommendations to Carter. The President will make the actual selections, subject to approval by the Senate.
Whether politics will be totally removed from the selection of judges is uncertain. A recent history of Virginia judges and how the eight were selected offers examples of the pivotal role of politics.
In 1967 President Lyndon B. Johnson was confronted with a difficult situation - three strong candidates for two new judgeships in the Eastern District of Virginia, which includes Northern Virginia, Norfolk, Richmond and the areas in between.
The three candidates were Richard B. Kellam, now 68, John A. MacKenzie, now 59, and Robert R. Merhige Jr., now 58.
Kellam, then a Circuit Court judge in Virginia, happened to be the brother of Sidney Kellam, the state's Democratic national committeeman and director of Johnson's 1964 campaign in the state. Sidney Kellam was also prominent in the political organization founded by former Governor and Senator Harry F. Byrd Sr., and had Sen. Harry F. Byrd Jr.'s backing for his brother.
Mackenzie was a close friend and ally of newly elected Sen. William B. Spong, also a Democrat, who beat the Byrd forces in a senatorial primary. Spong had let the White House know he would hold out for MacKenzie. Among the supporters of Spong's opponent in the primary was Sidney Kellam.
Merhige had worked actively for Johnson in the 1964 presidential election, and had the support of Richard Reynolds of Reynolds Metal Co., a major contributor to the Johnson campaign. Merhige also was backed by Lewis F. Powell Jr., at that time a former president of the American Bar Association and the Richmond Bar, of which Merhige had been president. (Powell now sits on the U.S. Supreme Court.)
The President, rather than make a choice, did nothing for six months. Then a vacancy occurred on the Fourth Circuit Court of Appeals, and another District Court judge was moved up to fill that slot. Thus three openings became available at the District Court level and Johnson escaped from his difficulty by recommending all three. The Senate quickly confirmed them.
In 1971, with a Republican President and no Republican senators, another judgeship was created in the Eastern District.
Republican Gov. Linwood Holton wanted to name D. Dortch Warriner, who had been the unsuccessful Republican candidate for state attorney general in 1965. Rep. Joel T. Broyhill wanted Albert V. Bryan Jr., now 50, a highly regarded apolitical Circuit Court judge in Fairfax whose father was a judge on the U.S. Fourth Circuit Court of Appeals.
Sen. William L. Scott, then a member of the House of Representatives, was backing Warriner. But the ABA let it be known that it did not consider Warriner qualified at that time and he withdrew.
To satisfy Republicans who were not pleased with Bryan's absence of Republican credentials - he had been made a state judge by the Democrat-dominated General Assembly - an agreement was apparently reached that Albert V. Bryan Sr. create a vacancy by moving up to senior status, which involves hearing cases only occasionally. This in turn opened up an appeals court slot for a Republican.
The GOP's first three choices were Rep. Richard H. Poff (R-Va.), M. Caldwell Butler and James C. Turk, now 54.
Poff dropped out of the running when he came under consideration for the U.S. Supreme Court and Butler decided he would rather run for Congress, in 1972 which he did successfully.
That left Turk, GOP Minority leader in the State Senate and former law partner of Poff and Ted Dalton, a former Republican gubernatorial candidate who had already been made a federal judge.
But Turk preferred the trial activity of a District Court judge to the appeals role of the Fourth Circuit Court. And District Court Judge H. Emory Widener wanted to be on the appeals court.
So Widener replaced Bryan Sr. and Turk became a District Court judge.
When the next vacancy occurred, in 1974, Scott, now a senator, was ready and announced Warriner as his choice so quickly that bar associations protested that they had been excluded from the selection process. Warriner now 48, was a leader of the conservative wing of the party.
Later that year, another vacancy came up and Scott picked J. Calvitt Clarke Jr., a Richmond attorney who had been active in GOP politics since 1948, had run for Congress and was chairman of the Third District Republican Committee. Clarke, now 56, had been eager for an appointment when Warriner was picked.
The last vacancy to be filled created the biggest fight. Scott wanted to name Glen M. Williams, 57, to replace the retiring Ted Dalton in the Western District.
But Scott at the time was backing Ronald Reagan against President Ford in the GOP presidential primaries. Ford sent up the name of William B. Poff of Roanoke instead.
According to Chase's book on federal judges, ". . . There are precious few cases in our history where a senator of the President's party has lost a pitched battle to reject a nomination to a federal office in his own state."
Chase was right again. The Judiciary Committee tabled the nomination to protect the tradition of "senatorial courtesy" and Ford eventually backed down.
In September, Ford sent up Williams' name and he was quickly confirmed. During the battle Scott had implied that Poff was "too liberal", and that he opposed him in part because Poff had once failed to meet him at an airport on a campaign trip.Scott also wrote a letter to the committee that appeared to imply that the Roanoke newspaper was backing Poff because Poff's wife worked there.
Williams, like most of the men who went on the federal bench, took a sharp cut in income, in his case a loss of more than half. A District Court judge earns $54,500 annually.
Williams, with the oldest of his four children in college and the youngest just 9 years old said, "I had been able to save enough money to educate my children or I couldn't have gone on the bench."
"It was a challenge and something I felt I was qualified to do," Williams said. After 30 years, practice was becoming "something of a drudgery," he said, and the federal bench is seen from law school on as the final feather in the cap on a lawyer's career.
Tuesday: How federal judges will be picked in the near future in Virginia.