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Disorder in the court?

Empty benches raise questions about how the legislature appoints judges

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Print this page by Robert Burke
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Del. David Albo Photo by Mark Rhodes

Virginia’s process for filling judgeships is facing criticism these days in the court of public opinion.

The past few months have highlighted the commonwealth’s troubles with the way judges are appointed, if appointments are made at all. Last November, the General Assembly’s leadership couldn’t fill a vacancy on the Virginia Supreme Court and left empty seats on the state’s

Court of Appeals going into 2015. Plus, before this year’s legislative session, there were 33 judicial vacancies around the state, slowing the work of court systems.

Most states use commissions to screen judicial candidates or let voters elect judges. Virginia is one of a few to give the power to appoint judges to the legislature. In practice, that means the majority party decides, but that’s been a problem lately for the GOP. The House of

Delegates was ready to vote on the high-level judgeships in November, but the Senate’s GOP caucus with its new one-vote majority couldn’t settle on candidates. So Virginia entered 2015 not having filled a Supreme Court vacancy caused by the December retirement of former

Chief Justice Cynthia Kinser. The legislature  appointed Virginia Court of Appeals Judge D. Arthur Kelsey to the post on Jan. 20. (Justice Donald Lemons is now chief justice.)

Failed reform efforts
Efforts have been made to change the way Virginia handles judicial appointments and limit political favoritism, but none has advanced through the legislature. There is still little chance that General Assembly members would give up their power willingly. “A lot of people have tilted at that windmill for a long time,” says Carl Tobias, a professor at the University of Richmond School of Law who is a longtime critic of Virginia’s approach to appointing judges. “You want the best possible judges regardless of party or political persuasion,” he says. “It’s just become harder to do.”

Defenders of the current system say it works better than any alternative. Electing judges “is, in my opinion, the worst idea ever,” says Del. David Albo, R-Fairfax, chairman of the House committee that handles judicial appointments.

He notes some critics want an independent body to choose judges. “Well, how is an independent body any better than the General Assembly?” Albo asks. “We think we’ve got the most qualified candidates. The people who don’t like our system are always the ones who wish we had chosen somebody else.”

Political power tends to rule appointments at every level. For circuit, general district, and juvenile and domestic relations courts, choices often are made by the region’s majority-party legislators. There are some hard feelings about that approach “because the Democrats feel like they’re squeezed out,” Albo says.

Northern Virginia legislators have taken a different approach over the years, he says. Legislators from both parties are given votes based on the number of precincts they’d won in their most recent election, and judicial appointees are chosen by secret ballot. “That system has worked great in Fairfax; we never have judge fights, ever,” Albo  says, noting that Virginia’s most populous county has a lot of legislators, making it harder for anyone to take over.

Funding problems
Yet even if legislators can agree on whom to appoint, they often can’t agree on funding for the state’s judiciary. In 2010 the General Assembly put a hiring freeze in place for new judges because of the recession’s impact on state spending. In the years since, the legislature gradually has filled many vacancies, including 13 lower court judges appointed in November. Last year the legislature increased the number of authorized judgeships statewide to 429 and increased funding for judicial vacancies. 

But the commonwealth still had 33 empty benches at the start of the year, says John Walker III, an attorney with Williams Mullen who is president of the Virginia Bar Association. “The size of our judiciary has not kept pace with the drastic growth in Virginia’s population over the last few decades,” he says.

Businesses, in particular, should be troubled by the shortage of judges, Walker says. Strained court systems give priority to criminal cases. That means a business with a civil dispute to resolve has to wait. “Business leaders want confidence in the resolution process, allowing them to focus on their customers and employees rather than litigation,” Walker says.

Albo says the formal evaluation last year leading to the increased number of authorized judgeships was a good step but acknowledged the funding issue “is a really big problem … the state is so broke right now that there’s not enough money to fill the authorized judgeships.”

Many localities are short several judges. For example, the 15th Judicial Circuit, which covers the Fredericksburg region and the Northern Neck, is supposed to have 29 judges but had just 21. “That’s a legitimate problem,” Albo says.

The 2015 session may see some funding increase, but the selection process is definitely going to get some scrutiny. Gov. Terry McAuliffe’s Commission to Ensure Integrity and Public Confidence, which has been working on ethics issues, is going to evaluate the judicial selection process and issue some recommendations.

The appointment power is written into the state’s constitution so any major change “would require amending the constitution, and that would take a lot of work and a lot of time,” says Tobias. More modest steps, such as creating an advisory commission and increasing the amount of transparency in the process, would help, he says. Currently, some area bar associations have influence on appointments, but others don’t, Tobias says.

Screening candidates, however, doesn’t assure prompt appointments. Both the House and Senate committees had certified Kelsey to fill the Supreme Court vacancy being created by Kinser’s retirement. In fact he was the only candidate that both committees had certified for the post, yet his appointment still didn’t happen in November.

Tobias suspects that getting politics out of the process will be nearly impossible. “I guess I’m not very optimistic about the prospects,” he says.

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