RICHMOND — Virginia Republicans say they will reject Gov. Terry McAuliffe’s pick for the state’s newest Supreme Court justice and install their own choice — an unprecedented move in modern Virginia history.
The decision added another layer of tension to the already fraught relationship between McAuliffe (D) and the GOP-controlled legislature, with the governor accusing legislative leaders of throwing “a political temper tantrum.”
“This woman is highly qualified, and I’ve got to tell you, it doesn’t send a good message to women around the commonwealth of Virginia,” McAuliffe said about the GOP decision not to back his appointment of former Fairfax Circuit Court judge Jane Marum Roush.
“This is the same group of individuals who have tried to roll back women’s rights and tried to hurt women’s rights in the commonwealth of Virginia,” McAuliffe said.
House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment Jr. (R-James City) said lawmakers will elect Virginia Court of Appeals Judge Rossie D. Alston Jr. to the Supreme Court when they convene in Richmond on Aug. 17 for a special legislative session.
The purpose of the session is to redraw congressional districts before a court-imposed deadline of Sept. 1. But lawmakers can also take up other business, including judicial votes.
Judicial appointments generally are left to the legislature. But when it’s not in session, the governor may fill a vacancy. McAuliffe did just that when he appointed Roush last week to replace retiring Justice LeRoy F. Millette Jr., effective Aug. 1. Because the governor made the appointment when the General Assembly was not in session, Roush’s term will expire 30 days after the legislature reconvenes.
Traditionally, when a governor has made such an interim appointment, lawmakers have chosen to reappoint that judge to a full 12-year term once the legislature was back in session.
But Republicans said that unlike past governors, McAuliffe did not seek their input and collaboration when choosing Roush, a well-regarded jurist who has presided over high-profile cases including the trial of D.C. sniper Lee Boyd Malvo.
Republicans have a majority in the House and the Senate. In a statement issued Sunday night, Howell and Norment said that both Roush and Alston were qualified but that Alston had the support of the Republican caucus. “It is our intention to elect him when the special session convenes,” Howell said.
House Clerk G. Paul Nardo said the last time the General Assembly unseated a Supreme Court justice after the justice had taken the bench was in 1900.
Earlier this year, McAuliffe and Republican leaders cautiously praised each other for working together to address a budget shortfall and for finishing their work a day ahead of schedule — giving Republicans and Democrats more time to campaign for primary races.
But the relatively cordial relationship evaporated quickly this summer as Republicans saw an opening to revive the abortion debate with the release of secret-camera footage of Planned Parenthood officials.
“This is certainly going to make relations with the governor more challenging and difficult,” said Bob Holsworth, a former Virginia Commonwealth University political scientist. “It is a very deliberate rebuff.”
McAuliffe said his effort to fill the Supreme Court vacancy was “open and transparent” and included a general call for applications in May. He noted that Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee, recommended Roush in a letter signed by himself and 12 Democrats. Albo stood alongside McAuliffe last week when the governor announced Roush’s appointment.
Albo said Monday that he still supported Roush but was “surprised that the governor hadn’t worked out all this before.” McAuliffe said he assumed that Albo’s support meant that Roush also had Howell’s blessing.
Roush has been on the Fairfax circuit bench since 1993, and the Supreme Court has tapped her to try cases in jurisdictions where local judges have had conflicts of interest. For example, she was assigned the triple-murder case in Alexandria involving Charles Severance, which she had to give up to serve on the Supreme Court.
Alston has served on the Court of Appeals since 2009. He was previously Juvenile and Domestic Relations Court judge for Prince William County and chief judge of the Prince William Circuit Court.
Casey R. Stevens, a defense lawyer in Prince William County, described both judges as “brilliant” and noted that the political fight could leave Roush — who resigned her Circuit Court judgeship in order to take the Supreme Court appointment — “sitting out in the wind.”
“I’ve had experience with both of them. They’re both brilliant; they’re both very, very bright. What I think is happening right now is a bunch of politics,” Stevens said, adding, “Do they just not put this brilliant woman on the bench, or do you go back to private practice, or what do you do?”