GOP doesn’t see the damage it caused

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Print this page by Robert Powell
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Jane Marum Roush and Gov. Terry McAuliffe after the
announcement. At left is Republican Del. David Albo. AP Photo

While acrobats were tumbling on the state Capitol lawn on a warm March day, a political circus was taking place inside the building.

The acrobats were three young Ukrainians with the Ringling Brothers and Barnum & Bailey Circus who were taking in the sights between performances at the Richmond Coliseum. They found the thick, sloping lawn on the Capitol’s south side too inviting to resist. Charging down the hill barefooted, they yelped while doing cartwheels and somersaults.

Acrobatic tricks were taking place in the General Assembly as well. While ostensibly naming a new justice to the state Supreme Court, Republican legislators maneuvered to score points in a feud with Democratic Gov. Terry McAuliffe.

The skirmishing began last summer when McAuliffe appointed Fairfax County District Judge Jane Marum Roush to fill a vacancy on the state’s highest court. The Virginia Constitution gives the General Assembly the power to name judges, but governors can make interim appointments when the legislature is not in session.

On 31 occasions in the past, the legislature had confirmed interim appointees to full terms when it returned to town. But not this time.

Republicans cried foul,claiming they had not been properly consulted on the appointment, even though one of their own, Del. David Albo of Fairfax County, had recommended Roush to the governor.

The Republican legislative leadership, House Speaker William J. Howell and Senate Majority Leader Thomas K. Norment Jr., made it clear they would remove Roush at the earliest opportunity. This set in motion a series of bizarre incidents in which the Republicans repeatedly tried to install their choice, State Court of Appeals Judge Rossie D. Alston Jr.

An outsider watching this confrontation would assume that the direction of the state’s high court hinged on the choice between Roush and Alston. That question, however, never was raised.  By all accounts, Roush and Alston are both highly qualified jurists. No one suggested that the state Supreme Court would make a radical turn if one or the other gained a permanent appointment.

Republicans hold an overwhelming 66-34 majority in the House of Delegates but a slim advantage, 21-19, in the Senate.  Their efforts to install Alston were stymied when two moderate Republicans, retiring state Sen. John Watkins and his successor, state Sen. Glen Sturtevant, refused to play along.

Needing another vote, Republicans attempted in February to sway a disgruntled Democrat, state Sen. Louise Lucas. In exchange for supporting for Alston, her mentor, Portsmouth Circuit Court Judge Kenneth R. Melvin, would be elevated to the state court of appeals. Lucas took the bait but quickly backtracked after a meeting with the governor.

On March 8, four days before the legislative session was to end, Republicans gave up on Alston and unveiled a surprise nominee, former Republican Attorney General Ken Cuccinelli. A hard-line conservative who alienated some Republican moderates, Cuccinelli narrowly lost the 2013 governor’s race to McAuliffe.

Opposition to the nomination was swift, but the furor was short-lived. Cuccinelli withdrew his name from consideration the next day saying that the Supreme Court appointment “simply is not the right time for our family.”

Republicans immediately turned to another nominee, Court of Appeals Judge Stephen R. McCullough, who had worked under Cuccinelli in the attorney general’s office.  On the same day courts committees in both houses certified that McCullough was qualified. The following day, he was elected to the Supreme Court with Sturtevant ending his holdout.

The swift finish to the months-long saga was head-spinning. Was Cuccinelli really a candidate for the high court? Some believe the nomination was simply a diversion to make McCullough’s appointment more palatable. Richmond-Times Dispatch columnist Jeff Schapiro  suggested that Republicans wanted to put the former attorney general on the court to prevent him from running for governor again in 2017.

In the end, Republicans crowed that they performed their constitutional duty. They seemed, however, oblivious to the damage they had caused. The situation reminded me of one of the old “Tom and Jerry” cartoons in which the cat finally catches the mouse but destroys the house during the chase.

Let’s total up the wreckage. The legal community was horrified by the whole spectacle. Even before the rapid-fire Cuccinelli-McCullough finish, 27 former presidents of the Virginia Bar Association were warning that appointment fight might prevent many capable lawyers from seeking judicial appointments.

And how about handing campaign issues to Democrats? Remember that Democratic canard, the Republican “war on women”? It now has a name, Jane Marum Roush.

Republicans already have a problem winning statewide races, having lost six since 2009. In the 2017 governor’s race, Democrats could use this spectacle to caution voters about the dangers of GOP excess.
Giving legislators the power to appoint judges supposedly shields the judiciary from politics. This incident shows how woefully the present system has failed to achieve that goal.

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