A political stalemate in Fairfax County has left several local court seats vacant, delaying criminal cases and child-custody disputes in Virginia’s largest judicial circuit.
At the center of the controversy is Del. Tim Hugo (R-Fairfax), whose mostly western Fairfax district became an island of red in Northern Virginia after a wave of Democratic victories in 2017 that left Republicans with only slim majorities in the state Senate and House of Delegates.
Early this year, Hugo — the sole and, therefore, ranking Republican among Fairfax delegates — ended a bipartisan approach to selecting judges in the 19th Judicial Circuit and began nominating his own candidates, cutting out Democrats in a dispute where each side accuses the other of politicizing what should be a sober process of filling empty seats.
The battle will pick up again in January, when the General Assembly begins a new legislative session with three judicial vacancies in Fairfax and a fourth expected after Circuit Court Judge Jan L. Brodie retires at the start of the year.
Political analysts say the dispute could hurt Hugo politically heading into next fall’s elections, with Democrats eager to seize control of one or both chambers.
“This is the first year that there’s ever been controversy surrounding this process,” said Del. Vivian E. Watts (D-Fairfax), who has served two stints in the House of Delegates, from 1982 to 1986 and again since 1996. Watts accused Hugo of returning to “an old boys’ club” approach.
In Virginia, local judges are approved by both the Senate and House of Delegates. Each chamber typically defers to the lawmakers who represent the area in deciding the best candidates for seats in the circuit, general district and juvenile and family courts.
Most local delegations in the state allow whichever party is in the majority in Richmond to determine who gets approved, a process that has led to complaints about political cronyism.
In the late 1970s, when Democrats controlled the General Assembly, Fairfax’s delegation adopted a bipartisan approach that allowed each member a vote, regardless of party, after lawmakers interviewed candidates and reviewed their bar associations ratings.
That practice continued after Republicans took control of the General Assembly in 2000, when Del. Dave Albo (R-Fairfax) became the ranking delegation member. In 2015, the Commission on Integrity and Public Confidence in State Government appointed by then-Gov. Terry McAuliffe (D) called the Fairfax approach a model for eliminating politics from local courts.
Hugo reinstated the majority-party-rules method, arguing that the bipartisan approach was broken. He said Democratic lawmakers were not asking judicial candidates appropriate questions — a characterization that Democrats strongly dispute.
“They’re not talking about judicial temperament; they’re not talking about issues of the judiciary,” Hugo said. “Sometimes, they’ll come in and talk about political issues. This isn’t about me picking judges. This is about picking good judges.”
Currently, no judges are being seated, because Democratic state senators in Fairfax have refused to endorse Hugo’s choices, while calling on him to reinstate the bipartisan model.
“We don’t treat judgeships like political lollipops,” said Sen. Scott A. Surovell (D-Fairfax). “They may do that in other jurisdictions, but that’s not how we do it here. These are very important positions that, among other things, decide who children are going to live with.”
Two of eight seats are vacant in the Fairfax County Juvenile and Domestic Relations Court, along with one of 11 in the General District Court. One of the 15 county Circuit Court judgeships will open up in January when Brodie retires, and the Fairfax Bar Association says there are more vacancies on the horizon.
The association called on lawmakers from both parties to find a solution to the standoff, saying the vacancies have “crippled” productivity as sitting judges take on more cases and legal disputes get delayed.
“The problem will only compound itself as additional vacancies continue to open,” the bar association’s president, Christie A. Leary, said in a statement.
Hugo, who won his 2017 election by 106 votes, appears vulnerable next fall, when he is being challenged by Democrat Dan Helmer. Sen. Tim Kaine (D) won the legislative district by 18 points this month, and Gov. Ralph Northam (D) won by 11 points last year.
Hugo’s critics say his position on judgeships is an example of him going against the region’s interests in favor of what GOP leaders want. They say Hugo did the same thing in April, when he joined the Republican majority to vote against $30 million in tax increases meant to help fund Metro, a move that also drew criticism from some local Republican lawmakers.
“This is part of a consistent pattern,” Helmer said. “He is playing politics with the lives of our families and children.”
Hugo said he’s open to changing the process to make it more fair. He wants the entire process of selecting judges to be transparent, eliminating closed-door votes on the candidates. Democrats say the closed-door process is needed so lawmakers can discuss confidential information shared by the candidates.
Hugo also said he offered to allow Surovell and state Sen. J. Chapman “Chap” Petersen (D-Fairfax City) — both practicing attorneys in Fairfax — to determine the best candidates.
Both declined the offer, saying it would leave other delegation members disenfranchised.
“I told him I was uncomfortable with that,” Petersen said. “I’m just one of 25 members in the delegation. I don’t want to be in a position to select judges.”
Quentin Kidd, director of Christopher Newport University’s Wason Center for Public Policy in Newport News, said Hugo needs to do away with such controversies and focus more on constituent services to keep his seat in November.
“The legal community spans across the political spectrum,” Kidd said. “If you cross the legal community, you’re probably going to cross your base in the district.”
Albo agreed that Hugo is in a tough position but said he understands why the legislator would want to try to ensure that there is still a strong Republican voice in judicial appointments.
“I liked the system where we all had one vote,” said Albo, adding that he kept it intact out of a sense of fairness and gratitude to Democrats who included him when his party was in the minority.
But “it’s a different world now,” he added. “Because Tim is the only Republican left.”