Judicial Appointments

States and Judicial Selection

January 29, 2021 by David Toscano

For those of you interested in why states are important, you might read Pennsylvania Could Become a National Outlier in How it Elects Appellate Judges by former Virginia reporter Marie Albiges.

One of the reasons why states matter has to do with judicial selection. We are somewhat unique in Virginia in that our judges are chosen in the legislature, not by direct election of the people. In contrast, most states choose judges by popular elections. These can be quite costly and divisive. There are many states where judges do not identify with a party as they seek election. Nonetheless, the public easily can identify them as either conservative, liberal, or moderate, and make their choices accordingly. While the Virginia system has generated an Appellate and Supreme Court bench that is generally conservative, our selection process avoids costly elections where people choose not necessarily on whether a person is capable of being a good judge but instead upon how a judge is sold to the electorate.

We are now see seeing a tendency emerging in states, mostly red ones, where legislatures are trying to gain more control of the judiciary in order to stock it with conservative judges. This article shows how that is occurring in Pennsylvania , but we can expect it all over the country.

Virginia Democrats are trying to increase the number of judges on Virginia’s Court of Appeals, arguing that we need more judges so that justice may be served.

You can read more about judicial selection in the states in my upcoming book, Fighting Political Gridlock: How States Shape Our Nation and Our Lives, to be published late this summer by University of Virginia Press.

Why States Matter: Voting Rights and the Judiciary

August 3, 2016 by David Toscano

Several weeks ago, in a piece entitled “Why States Matter,” I argued that while we are rightly focused on the Presidential election, we should not lose sight of what is happening in our states, where the concerted efforts of conservatives around the country over the last decade have skewed the political composition of our state legislatures – with dramatic results.

As we focus on Congressional, Senate and Presidential contests, we must remember that the actions of state legislatures greatly impact their outcome. What we have seen over the last decade from conservative-dominated legislatures are new laws designed to make it harder to vote and to reduce turnout, especially in minority communities. These laws are justified by so-called voter fraud, which numerous independent studies have shown either to be non-existent or so small that it has no impact. State legislatures, including Virginia’s, continue to impose new requirements for voter identification. Prior to 2006, not a single state required a person to present photo ID in order to vote; by 2015, 34 states had such laws. Virginia enacted its current law in 2014. Many were enacted after the U.S. Supreme Court’s 2013 decision that struck down certain portions of the Voting Rights Act in Shelby County v. Holder. This coincidence has not gone unnoticed.

Courts Take Action

A number of courts have recently ruled that these state actions are unconstitutional. Statutes similar, though not identical, to those in Virginia were just struck down in Wisconsin and Texas. A federal district court in North Dakota has now blocked implementation of that state’s 2013 voter ID law. In Wisconsin, the federal court wrote, “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement.” And last week, the U.S Court of Appeals for the 4th Circuit struck down North Carolina’s voter suppression law, among the most draconian in the country, the court stating that the law’s provisions targeted African-Americans with “almost surgical precision.” This same court will hear the case against Virginia’s photo ID law on September 22, 2016.

Some courts are acting to correct the most insidious voter suppression laws. But in states where these laws remain, they will likely depress turnout, especially among minority voters. A new study by researchers at the University of California at San Diego suggests that Democratic turnout drops an estimated 8.8 percentage points in general elections in states with strict ID laws and Republican turnout drops 3.6 percentage points. In Virginia, the Department of Elections says 179,000 “active voters” have no DMV-issued photo ID. These numbers are so high that they are almost hard to believe. Nonetheless, it is clear that conservative legislatures are attempting to suppress the vote in order to keep power.

Some citizens will be encouraged by court decisions, saying that “the Courts and the Constitution will have our backs” by overturning these suppression efforts. But lawsuits cost money and take time, and despite these recent decisions, courts generally defer to legislatures; the battlegrounds remain, therefore, in the legislatures.

Gubernatorial Overreach, or Voter Suppression?

In Virginia, the rallying cry has become “they are making it harder for people to vote – make sure you bring your ID to the polls.” But voting should be made easier, not harder. And when Virginia Democrats proposed to make it easier, for example, with measures that would allow early voting for persons over 65, same day registration, and no-excuse absentee voting, the answer from the Republican House of Delegates has been a resounding “No.” In Virginia, the only thing preventing more draconian voter suppression efforts from being enacted into law is a Governor’s veto, together with enough Democrats in the legislature who will sustain it.

One way to view the recent dispute surrounding Governor McAuliffe’s efforts to restore voting rights to felons who have paid their debt to society is through a lens of voter suppression. We have heard a lot about “second chances” and “redemption,” but when the Governor attempted to accelerate the process for reviewing individual applications for rights restoration by hiring more staff, the House Republicans just said “No,” and offered no alternative to help streamline the individual application process. In fact, they have voted against all legislation that would do so. Consequently, to speed up restoration of these rights, the Governor acted to restore rights to all felons who met specific criteria. The Virginia Supreme Court, in a 4-3 decision in Howell v. McAuliffe, the swing vote coming from the recent Republican appointee in the aftermath of Justice Jane Roush’s firing, overturned the Governor’s Executive Order, despite the plain language of Article V, Section 12 of our Virginia Constitution that states “The Governor shall have power…to remove political disabilities consequent upon conviction….”

State House to Courthouse

In Virginia, not only does the state legislature make the laws about who can vote, when they can vote, and how they can vote, but it appoints the judges who interpret these laws. And slowly but surely, our judiciary is being populated with conservative judges; the decision in Howell v. McAuliffe shows clearly how these appointments matter. This is yet another reason why we need to work to change the House of Delegates. Who knows how Justice Roush would have approached the felon restoration of rights issue, or whether her presence would have changed the vote. We do know, however, that rules about voting and the interpretation of laws by judges appointed by state legislatures again show “Why States Matter.”

The Budget and Adjournment

March 11, 2016 by David Toscano

House and Senate budget conferees came to an agreement late Tuesday, March 8, and published their proposed two-year budget on Wednesday in a “conference report.” The agreement contains many good things for which we have fought.

Highlights include:

Major increases in K-12 education funding over the current biennium, including almost $200 million in lottery funding for school divisions, which will greatly help Charlottesville and Albemarle, a 2 percent salary incentive effective December 1, 2016, and additional money for eligible students to receive free or reduced lunch and breakfast at schools.
Major new funding for higher education, including a 3 percent across-the-board raise for faculty. UVA will receive about $10 million for access and affordability, as well as $4 million for the Focused Ultrasound Program, a cutting edge research initiative, and monies for bioscience incentives.
Full repayment to the Virginia Retirement System (VRS) of money the General Assembly borrowed several years ago – a move I voted against – and funding 100 percent of the VRS board-certified contribution rates. Both of these actions will enhance the fiscal viability of the system.
An additional $76.2 million for mental health services.
Fully funding the “Rainy Day Fund,” the special account we reserve for use if Virginia experiences a dramatic economic downturn.
Additional monies for our community colleges to develop new programs to train the workforce of the next decade.
Monies for the “Presidential Precinct,” an initiative developed by UVA, William and Mary, Monticello, Ash Lawn and Montpelier to bring scholars and elected officials from around the world to Virginia to be educated on how democracy works. This is an initiative that I and others in our area have supported, and worked with the Governor to get in his budget.
Major initiatives for job creation through the “GoVirginia” concept. This will allow regions to cooperate in competing for economic development grants and projects necessary to build the New Virginia Economy. GoVirginia creates a great opportunity for our region given the degree to which the University, the city and the county cooperate on policy initiatives.
Monies to fund a new General District Court judgeship in our Judicial Circuit.

In addition to these larger categories, some specific items I proposed are included in the Conference Report, such as:

$900,000 extra funding for court-appointed counsel who take on complicated cases defending indigent clients.
An increase in fees for court appointed mediators.
Support for the Fostering Futures Program, which allows foster care and adoption assistance to be extended for youngsters who would otherwise “age-out” of the foster care program on their eighteenth birthday. Funded with $1.9 million from the general fund (Virginia tax dollars) and $3.9 million in non-general fund money (from the federal government or other sources), the program will benefit a large number of foster children who otherwise might experience tremendous difficulty transitioning to adult life.
Additional money for the Centers for Independent Living. We have a wonderful center in Charlottesville called the Independence Resource Center, and this new money will help the IRC and other centers around the Commonwealth build their programs on behalf of disabled persons.

The largest missed opportunity continues to be the Republicans’ refusal to embrace Medicaid expansion under the ACA. It is ironic that despite their negative rhetoric, our budget does expand some Medicaid services, but in the most inefficient way possible. Under present law, every dollar we appropriate for Medicaid is matched by the federal government with another dollar. Consequently, when we implement new Medicaid spending for substance abuse treatment or to provide new waiver slots for intellectual or developmental disabilities in this budget, we are saying that we trust the federal government to fund its 50 percent of these programs. Yet we still hear the argument that Virginia cannot trust the federal government to continue funding “Medicaid expansion” if it happens under the ACA, where the federal government would pay 90 percent of the costs. This rejection of readily-available Medicaid money has become an article of faith for our Republican counterparts; without a change in the General Assembly’s political composition, Medicaid expansion is unlikely for the next several years.

On Thursday, the General Assembly approved a new Supreme Court Justice after an extremely flawed process. I did not support the appointment and you can see my speech explaining why in the video below.

As the session concludes, I thank you again for all of your input and support over the last sixty days. I am happy to be returning to Charlottesville to be with my family and continue my law practice. I remain available to serve constituents’ needs, and will shortly organize a series of town halls and smaller meetings to discuss the successes and failures of this General Assembly session.

They Did What?

March 9, 2016 by David Toscano

Rumors frequently percolate around the General Assembly building and many of them turn out to be false. One rumor that circulated early Tuesday was that former Attorney General Ken Cuccinelli was being considered for appointment to the Virginia Supreme Court. I considered the rumor so fantastic that I did not even check into it. Boy, was I wrong! In the blink of an eye, without any interview of Cuccinelli or even an indication he was being considered or was even interested, the Senate Courts of Justice Committee certified and qualified him to be eligible for appointment to the Virginia Supreme Court, the first step in the process of formal appointment.

Alarm bells went off throughout the Capitol as word spread of this latest twist to an already-extraordinary situation. On Monday, in a largely party-line vote, House Republicans voted to appoint Rossie Alston, a Court of Appeals Judge from Prince William County, to the Supreme Court. He did not, however, garner the requisite votes in the Senate, and was not confirmed. This followed the unprecedented vote in the House rejecting Justice Jane Roush, who has been fired by the Republicans from the Supreme Court.

The immediate reaction to the news was “what must they be thinking?” If a Cuccinelli nomination occurred, it would violate almost all of our procedural guidelines, and an undeniably partisan person would be elevated to the Supreme Court. We thought judicial selection and appointment was political before, but we were facing the possibility of totally politicizing the process, an extremely concerning development for the Commonwealth.

The surprises aren’t over yet; now Cuccinelli’s name has been withdrawn, and a new name has been brought forward in the Senate. Stay tuned for further developments.

The Last Week of the Session

March 8, 2016 by David Toscano

The 2016 Session of the Virginia General Assembly is scheduled to end on Saturday, March 12, and there is significant work remaining. Most efforts are now focused on reconciling the House and Senate budgets. The good news is that there is a lot of common ground; both bodies supported much of the Governor’s introduced budget, and have provided substantial increases for K-12 education, higher education and job creation. Some specifics on how to implement certain investments in higher education and job creation remain to be resolved. In my view, the House budget has erected an overly cumbersome screening process for some research and economic development projects that may make it difficult to respond quickly and nimbly to opportunities. Universities, for example, may need to move quickly to attract talent from other states with funding packages that will ensure they will relocate to Virginia; too many bureaucratic hoops may make recruitment more problematic. The same is true for efforts to recruit and retain businesses in the Commonwealth. These issues are likely to be resolved, and I expect the House and Senate conferees will reach agreement on a budget in the next several days.

Challenges remain with the so-called reform of the Certificate of Public Need (COPN) process. The COPN system is designed to protect hospitals from being undercut by medical providers who seek to establish stand-alone clinics offering only the more profitable areas of medical care. This would create greater fiscal uncertainty for hospitals, which might need to charge more for other services in order to continue to provide costly indigent care. A compromise that would have allowed some reforms in exchange for contributions to a fund designed to assist uninsured Virginians fell apart Monday afternoon, but it is worth a careful look in the future. COPN reform represents a significant change in how we provide medical services in the Commonwealth, and deserves thoughtful scrutiny before adoption.

Funding for Planned Parenthood continues to serve as a lightning rod for Republicans who seek to undo Roe v. Wade and undermine reproductive rights. HB1090 would prevent any non-Medicaid money from being provided to Planned Parenthood; this would take away much of its resources for family planning counseling and birth control, the major services it offers. Defunding this organization is a symbol to House Republicans, but I will continue to defend against those efforts.

I recently gave a floor speech about the Coal Tax Credit, which you can watch immediately below.

I also gave a statement on the Republicans’ refusal to reappoint Justice Jane Roush to the Supreme Court of Virginia.

Several of my measures are making steady progress. My bill to allow our own Jefferson Area Board for Aging (JABA) to compete for neighborhood assistance tax credits was passed by both bodies and is being sent to the Governor for signature. The bill that I introduced to make it easier to hold drivers accountable when they pass a stopped school bus (HB915) has been rolled into another measure, and is now in a conference committee on which I serve. I trust we will vote to approve this measure in the next several days. Finally, my bill to give greater flexibility to school divisions addressing challenges for English Language Learners (ELL) was passed by the House. In the Senate, however, the committee simply decided to send a letter to the Board of Education requesting that they study the issues and determine whether the problems which generated my bill should be addressed at the state level or by local school authorities.

Throughout this session, I have greatly appreciated all of the emails and phone calls from constituents providing very useful advice about how I should vote on bills. In most cases, our views have been similar, but even in those cases where we have differed, the input has been critical and makes a difference in how I think about these issues. Please do not hesitate to continue contacting me about the issues before the General Assembly.