Tug of war

Dispute heightens concerns about judicial appointment process

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Print this page by Robert Powell
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Gov. Terry McAuliffe greets Supreme Court Justice Jane
Marum Roush. AP photo by Bob Brown/
Richmond Times-Dispatch

Little change has taken place over the years in the annual ranking of Virginia’s top law firms in terms of the number of lawyers they employ. A lot of drama, however, is taking place in choosing the judges in Virginia’s courtrooms.

One of the long-standing concerns of Virginia’s legal community has been the handling of judicial appointments by the General Assembly.

Unlike many states that have elected judges, Virginia leaves all judicial appointments in the hands of state legislators. In theory, this arrangement removes judges from the influence of politics. In practice, judicial appointments have become tools of patronage.

In recent years, the Virginia Bar Association and other groups have complained about judicial vacancies and mounting case backlogs in many courts throughout the commonwealth.

In 2015, however, the appointment of a Virginia Supreme Court judge became a power struggle between Gov. Terry McAuliffe and the General Assembly’s Republican leadership.

The political maneuvering that has taken place to oust McAuliffe’s appointee has provoked calls for reform of the system.

Last summer McAuliffe named former Fairfax County Circuit Court Judge Jane Marum Roush to the Supreme Court while the legislature was not in session.

Republicans cried foul, claiming they were not consulted on the interim appointment. They vowed to remove Roush from the court and name their own appointee.

Attempts to oust the justice from her seat, however, were thwarted when one moderate Republican state senator, John Watkins, and then his successor, Glen H. Sturtevant Jr., failed to follow along. Their dissent denied the Republicans the majority they needed in the Virginia Senate.

In early February, the tug-of-war over the justice took a surprising turn when state Sen. Louise Lucas, a Democrat from Portsmouth, briefly agreed to join the Republicans in replacing Roush. According to news accounts, Senate Majority Leader Thomas K. Norment Jr., a Republican from James City County, had proposed putting Portsmouth Circuit Court Judge Kenneth R. Melvin, a former legislator and Lucas’ mentor, on the state Court of Appeals.

Lucas, however, quickly changed her stance after meeting with McAuliffe and state Sen. Donald McEachin, head of the Senate Democratic Caucus.

Twenty-seven former presidents of the Virginia Bar Association released a statement urging McAuliffe and the Republican legislative leadership to resolve their quarrel.

“One of the greatest concerns is that the unseemly exchange that has occurred will make otherwise qualified lawyers not consider a life of public service as a judge,” said Lucia Anna “Pia” Trigiani  of MercerTrigiani in Alexandria, the VBA’s president in 2011.

Roush’s temporary appointment expired in mid-February, but McAuliffe is expected to appoint her to another interim term after the legislative session ends.

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