Updated Sept. 4, 2014
Whether you are a “strict constructionist” who believes the primary role of a judge is to serve as an umpire who calls “balls and strikes”, take the view that the Constitution is more a “living document” that should be interpreted within the context of the social and political forces of the time, or believe that a judge should simply serve the community by dispensing justice and helping resolve large and small problems in a thoughtful way, judges matter.
We have been fortunate that our community has been served by a series of very capable and committed judges. We have now been waiting for almost seven months for action from the General Assembly to appoint a successor to Judge Ted Hogshire. It now appears that we will wait longer still.
The waiting is a function of a number of factors. First, the budget fight distracted attention from a serious discussion of judges. We were told that judges could not be appointed until after the budget was approved, which did not occur until late June. At that time, Delegates and Senators simply did not have the energy to do any more than pass a budget. Second, since we have not technically adjourned, the Governor’s ability to make temporary appointments has been short-circuited. A cynic might think this is part of a plan by Republicans in the legislature to prevent a Democratic Governor from making appointments that they will not like; I will let you draw your own conclusions. It appears now that we will not reconvene until mid-September, so the vacancy here and those existing in other parts of the state will continue to remain unfilled. This is a tragedy, and is yet another example of the increasing partisanship in Richmond.
Whatever you may think is the reason for the failure to act on judges this year, one thing has become abundantly clear during my time in office – the selection process has become increasingly partisan, as a number of Republicans, primarily in the House but also in the Senate, are seeking to fill the judiciary with judges who tend to be more socially and politically conservative, especially in the area of criminal justice. For some, this is part of a conscious effort to impose their political will on the judiciary, and reshape the Commonwealth in their image. The long term implications, particularly as some of these judges move up to the appellate bench, are far from clear.
As I view it, we need greater diversity of thought and background in our judiciary, and should appoint people based on a variety of criteria, including their knowledge of, and experience with, different areas of the law. This is one reason why I give great deference to the recommendations of bar associations in the selection process, deference that is increasingly ignored in Richmond. Who knows the candidates better than their colleagues and while we should not set up our local bars as “mini star chambers” to select judges, we should accord them a greater role than we do at present in a selection process, which appears increasingly subject to the will of a small number of legislators.
Another part of this issue involves appointments to the bench when the legislature is in recess. Under normal circumstances, the Governor and the circuit courts are empowered to make temporary appointments to the appellate and trial benches (Governor) and the district courts (circuit court judges) during those months the Assembly is not in session. Our Constitution allows for orderly and expeditious transitions within the judicial branch. The Governor’s ability to make recess appointments is contained in the Virginia Constitution in Article VI, Section 7, which reads in part:
“During any vacancy which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the General Assembly. Upon election by the General Assembly, a new justice or judge shall begin service of a full term.” [Emphasis added.]
During the budget process, language was inserted into the bill that would prevent judges appointed during a recess from being paid. The Governor vetoed this language, but the House, in a procedural move, ruled the Governor’s veto “out of order”. Clearly, House Republicans are attempting to prevent the Governor from making recess appointments by making it difficult for a lawyer to take a judgeship for which they might not be paid.
We return in mid-September, at which time I hope we can resolve this impasse. The Governor has proposed a solution in the form of a bill I filed (HB5005) that protects legislative prerogatives while allowing the Governor his Constitutional right to appoint during recesses. I hope my House colleagues will embrace it. So, we will be waiting until at least mid-September for a new judge.
Sept. 4, 2014
I am trying to keep you informed about the judicial selection process for the 16th Judicial Circuit. There is a good chance that a judge for our court will be chosen when we return to Richmond on September 18. A list of candidates has been prepared for interviews by the Courts of Justice Committees in the House and Senate. This list was advanced by Republicans in the House. Just so you are aware, neither Senator Deeds nor I have been involved in any discussions about who should be on this list; it is simply a list prepared by Republicans, primarily Delegate Bell.
As you know, David Franzen was the only person recommended by the Bar Association. For whatever reason, he was not included on the list. Judge Richard Moore is the only local person included on the list.
I think most of you now understand how political a process this is. Although I like and respect Judge Moore, and believe he has done a nice job as Juvenile and Domestic Relations Court judge, I favor a much less partisan selection process which respects the views of our colleagues and is conducted in a transparent fashion that involves our citizens.
If any of you wish to express your views about this decision-making process, I would encourage you to call the Republican members of our delegation and make them known.
P.S. As an update, some of you have asked for a list of the names of the potential candidates for our district. They are Judge Moore for Circuit Court, Deborah Tinsley for Judge Moore’s seat, and David Barredo for a new JDR seat.