RICHMOND — The Supreme Court of Virginia wrapped up last week by releasing a flurry of legal opinions, 10 in all, its newest justice having a hand in nearly every one.
Did two 16-year-old rapists deserve the sentences they got? Was a suspect in a drug case denied the right to a speedy trial? Did a construction project breach a wetlands conservation easement?
From the lofty perch of the state’s highest court, Justice Jane Marum Roush and the rest of the bench passed judgment on how lower courts had answered those questions. Hours later, Roush was out of a job and answers were in short supply.
At the stroke of midnight Friday, time ran out on the second of two temporary appointments that Gov. Terry McAuliffe (D) had given the former Fairfax County Circuit Court judge. Both times, the Republican-led legislature refused to keep her on the bench.
What’s next is unclear — for Roush and her staff as well as the state’s now-short-handed high court. The same goes for a widening group of judges and lawmakers caught up in the drama, which in recent weeks has put a freshman Republican at odds with the rest of his caucus and exposed a racial rift among veteran Senate Democrats.
McAuliffe has vowed to give Roush yet another recess appointment when the General Assembly concludes its 60-day session a month from now. He reiterated that point Friday night, just hours before her term was due to expire.
“I’ve said publicly I’ll reappoint her,” he told reporters after speaking at the opening of Hillary Clinton’s Richmond campaign headquarters.
Republicans seem as determined as ever to put someone else in the slot — a goal they are just one vote short of achieving. They appeared close to pulling that off twice in the past two weeks, as one Democratic senator publicly considered backing the GOP’s choice and another explicitly did so in a committee vote. But in both cases, the Democrats ultimately stuck with their party.
“The constitution says it is the General Assembly’s responsibility to elect the justices of the state Supreme Court, and the House of Delegates stands ready to act,” said Matthew Moran, spokesman for Speaker William J. Howell (R-Stafford).
Amid the current stalemate, Roush is out of work and prominent members of the Virginia bar are incensed. For the first time in modern history, they noted, a governor’s Supreme Court appointee has not won a permanent appointment from the legislature. They described the episode as more than unfair to an eminently qualified jurist, casting it as a threat to democracy.
“We urge our elected representatives to put aside partisanship and follow the tradition and examples of their predecessors in preserving the rule of law,” they wrote.
Roush, who previously faced criticism from the GOP for speaking out on her situation, declined to comment.
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 to the slot.
GOP legislators initially had no complaints about Roush, a highly regarded jurist who has presided over many high-profile cases, including the trial of D.C.-area sniper Lee Boyd Malvo. But they noted that judicial appointments are theirs to make and that they preferred Court of Appeals Judge Rossie D. Alston Jr., who has served on the Court of Appeals of Virginia since 2009. They also complained that McAuliffe had not conferred with House or Senate leaders before making his pick.
GOP opposition only grew after Roush accepted a second recess appointment in September, at a time when McAuliffe’s authority to grant it was in doubt. They said she had proven herself unfit for the bench by accepting what they deemed an unconstitutional appointment because McAuliffe made it a time when the House had not gaveled out of an August special session.
The Senate abruptly adjourned Aug. 17 in a bid to preserve McAuliffe’s power to put her back on the bench, but the House did not. Under the Virginia Constitution, neither chamber shall adjourn “without the consent of the other.” The governor’s administration argued that the language about consent is in a section of the Constitution that refers to regular legislative sessions, not special sessions.
The drama could turn on that sort of legal nitty-gritty as it moves forward.
If the GOP cannot break the impasse, legislative leaders seem likely to try to block a third recess appointment by not gaveling the current session to a close.
But that strategy carries several complications, including a need for super-majority of the legislature to approve extending a regular session. It would come with a financial hit: Legislators, several of whom are seeking statewide office in 2017, are prohibited from raising funds during regular sessions. That is not the case for special sessions.
For the moment, Roush and her staff are in a strange state of professional limbo. She was not immediately required to clear out the office space that the Supreme Court rented for her, as it does for every justice, in her home jurisdiction. But, having turned down the GOP’s offer to put her back on the Circuit Court or give her Alston’s Appeals Court slot, the paychecks and health insurance are gone.
“After nearly twenty-three years of dedicated public service, she finds herself without a salary,” Lucia Anna Trigiani, a supporter and a former Bar Association president, said in an email. “If she retires, as some suggest she might do, she faces a life-long reduction in her pension, because she has not reached the full retirement age.”
All that was certain were her plans for Saturday, attending the funeral of her father. Supporters said it was a sign that, even through controversy and personal loss, Roush cleared her docket and proved herself to be a dedicated public servant.
“You know, she’s burying her father tomorrow,” McAuliffe said Friday. “A tough time.”
Tom Jackman contributed to this report.