RICHMOND — A freshman Virginia state senator said Sunday that he will buck fellow Republicans as they seek to replace Gov. Terry McAuliffe’s pick for the state Supreme Court.
Justice Jane Marum Roush has been the subject of fiercely partisan debate and unexpected maneuvering since the summer, when McAuliffe (D) used a recess appointment to temporarily install the suburban Washington judge on the state’s highest court.
The latest twist came this weekend, when Sen. Glen Sturtevant (R-Richmond) said he would not go along with plans to unseat the governor’s choice — a move that would be unprecedented in modern times — by giving the slot to someone else.
“Judge Roush is a highly qualified, distinguished jurist and should stay on the bench,” Sturtevant said. “I had hoped that clearer heads would prevail on this issue and all of the concerned parties could come together and find a workable solution. I still hold out hope for that. But at the end of the day, this really is about maintaining the independence of the judiciary, and politicization of the entire process is not good for the court, it’s not good for the General Assembly, it’s not good for Virginia — and I’m not willing to be a party to that.”
Sturtevant revealed his plans to the Richmond Times-Dispatch late Saturday and confirmed them in an interview with The Washington Post on Sunday morning.
House and Senate court committees were scheduled to interview state Court of Appeals Judge Rossie D. Alston Jr. for the job Monday. The full chambers were expected to vote on his appointment to a full 12-year term as early as Tuesday.
Republicans have an overwhelming majority in the House but cannot afford any defections in the Senate, which they control by a 21-19 margin. Sturtevant’s stance would prevent the General Assembly from installing Alston, absent any Democratic defections. But it would not necessarily save Roush, whose temporary appointment is due to expire in less than a month.
Jeff Ryer, a spokesman for the GOP Senate caucus, declined to comment. House Speaker William J. Howell (R-Stafford) expressed dismay with the turn of events.
“Senator Sturtevant’s decision is frustrating, especially considering the otherwise unanimous Republican support for Judge Alston — that’s for the Senate to address,” Howell said. “The House is not wavering in its support for Judge Alston, who is a highly qualified African American jurist from Northern Virginia.”
Howell went on to make clear that GOP leadership has grown more opposed to Roush in recent months. Initially based on a perceived breach of protocol by the governor, the leadership’s objections now extend to Roush — for publicly lobbying to keep her job and for accepting a second recess appointment from the governor, given that his authority to grant it was in question.
“Regardless of the outcome of Judge Alston’s election, the House will not support former Justice Roush,” Howell said. “Her overtly political actions in the fall and her decision to accept an unconstitutional appointment from the governor disqualify her from service on the court.”
Sturtevant’s support for Roush comes despite the governor’s strenuous efforts against the Republican during the fall elections. Together with a gun-safety group bankrolled by former New York mayor Michael Bloomberg, McAuliffe had campaigned vigorously against Sturtevant, hoping to flip the Senate to Democratic control by delivering the seat to Dan Gecker.
On Sunday, Sturtevant faulted McAuliffe for mishandling the appointment, but he said that does not justify dumping Roush.
“I think it’s clear to anyone who has followed this that the governor has bungled it, and it’s a failure of leadership on his part that has brought us to the situation that we are in,” Sturtevant said. “But at the end of the day, the judicial branch is a separate, co-equal branch. . . . I consistently said throughout the campaign that judges should be picked on merit, not based on politics, and I’m working to follow through on that.”
McAuliffe suggested in December that the judicial battle was the result of a Republican “setup” because a GOP lawmaker had proposed Roush’s nomination to the bench. In a speech to legislators Wednesday, McAuliffe made a last-minute plea to save Roush, which his spokesman reiterated Sunday in response to Sturtevant’s comment.
“As the governor said in his State of the Commonwealth [address], removing this qualified and distinguished justice from the bench out of purely partisan motives would be a dangerous affront to the independence of Virginia’s judiciary branch,” spokesman Brian Coy said.
McAuliffe gave Roush an interim spot on the state’s highest court in July, when the legislature was not in session. Such recess appointments expire 30 days after the legislature reconvenes unless legislators elect the judge for the slot.
Republican leaders initially had no objections to Roush, a highly regarded former Fairfax Circuit Court judge who presided over the trial of Washington-area sniper Lee Boyd Malvo. But they noted that judicial appointments are theirs to make and that they preferred Alston, who has served on the Court of Appeals since 2009 and was a judge on the Prince William Juvenile and Domestic Relations District Court. He also was chief judge of the Prince William Circuit Court.
Republicans also complained that McAuliffe violated protocol by not consulting them. McAuliffe’s decision to call a special session in August further stoked their ire — and gave the GOP the opportunity to thwart his judicial choice, because the 30-day expiration started ticking when lawmakers returned.
Republicans planned to install Alston in the slot during that special session, but they were foiled by a moderate Republican senator from the Richmond suburbs, John Watkins of Powhatan. Watkins has since retired. Sturtevant was elected to Watkins’s seat.
Watkins’s move left the court position unfilled, and McAuliffe gave it to Roush with a second recess appointment.
But the governor’s authority to do so was in doubt, because he can make recess appointments only when the legislature is not in session. The Senate abruptly adjourned in August — even before it took up the matter of redistricting — in a bid to preserve McAuliffe’s power to reappoint Roush. But the House did not formally gavel that special session to a close until Wednesday, one minute before it reconvened its regular session.
Legal experts have said any actions Roush took on the bench after her original appointment expired Sept. 16 could be open to challenge by litigants because the legitimacy of her reappointment was debateable. Apparently concerned about that issue, the Supreme Court changed its calendar in September so that it could wrap up that month’s work before Roush’s first appointment expired.
But she has continued to serve on the bench since her reappointment.
This month, at the unveiling of her portrait as a Fairfax Circuit Court judge, Roush briefly grew emotional as she spoke of the controversy and uncertainty that have surrounded her tenure.
“I’d be lying if I told you this turn of events hasn’t been distressing to me and my family and staff,” she said. “I suppose if there’s any silver lining to this unpleasantness, it’s that people have said almost nothing negative about my qualifications, my abilities or my integrity. ‘It’s not you,’ I am told. ‘It’s just politics.’ ”
The portrait ceremony by the Fairfax Bar Association turned into a mini-pep rally for Roush, with Douglas Kay, the bar’s president, urging the lawyers to lobby legislators and “bend some ears.”
N. Thomas Connally, a partner at Roush’s former law firm, Hogan Lovells, noted that 31 Supreme Court justices have been appointed by Virginia governors during recesses, all of them later elected by the General Assembly.
“Pushing Justice Roush off the bench after five months on the Supreme Court and more than 22 years on the Fairfax Circuit Court shows disregard — if not disdain — for that service,” Connally said, “and will discourage similar service from others.”
Tom Jackman contributed to this report.