Two Supreme Court Justices Lost

February 23, 2016 by David Toscano

I gave remarks on the floor of the House of Delegates. The prepared text is below and is followed by a video of my remarks.

TOSCANO STATEMENT (AS PREPARED) ON DEATH OF ANTONIN SCALIA AND FAILURE TO CONFIRM JANE ROUSH – FEBRUARY 17, 2016

Mr. Speaker, Ladies and Gentlemen of the House.

This past weekend, we lost two Supreme Court Justices, one due to events over which we have no control the death of Antonin Scalia – and the other one due to factors over which we have much more control, the failure to approve Justice Jane Roush to sit on our Supreme Court.

Say what you want about his politics, Antonin Scalia was nonetheless a man of engaging personality and towering intellect. He was the first Italian American to be placed on the Supreme Court and he made his mark. Some of us got to know a little about him while he was a University of Virginia faculty member and resided in Charlottesville, but the true force of his conservative ideals did not emerge until his later appointments. His passing leaves a vacancy and in the U.S. Constitution – yes, the U.S. Constitution, says “the President shall nominate…” another Justice.

Scalia was nominated by President Ronald Reagan in 1986 and unanimously confirmed. We certainly did things differently back then! It took about thirty days from the time hearings commenced on Scalia’s nomination until his confirmation. As of this date, we have about 340 days until a new President takes office to succeed President Obama, and yet, within minutes of Scalia’s passing, Republicans in the Senate were stating that there was no way they would approve any nominee of this President. Any nominee? Senate Majority Leader, Mitch McConnell, even said that we need to let the public have a voice in the decision and that we should wait until the next President is installed until any nominations are even made. Again, that is 340 days away. 340 days for cases to pile up before the court. 340 days for critical decisions to be ignored and avoided. 340 days during which Republicans in the Senate can attempt to dictate to the rest of the country how justice shall be served.

Justice Scalia, the jurist perhaps most closely associated with literal and plain meaning interpretations of the Constitution should be screaming. Article II Section 2, Clause 2 of the Constitution says “the President shall nominate…”. It does not say “the next President”, “the future President”, or “a Republican President”. It says the President, and Barack Obama will be President for over ten months. The failure to acknowledge that clause in the Constitution is yet another example of how Republicans simply avoid an interpretation of that document which is not in sync with their political ideology, and drives us further down the road of politicization in the judicial selection process and the judiciary.

Very similar things are happening in Virginia. In our Commonwealth, we talk a lot about the Virginia way, but, with our failure to retain an eminently qualified Justice of the Supreme Court, Jane Roush, we are beginning to lose our way. No one has questioned her qualifications. And she has been sitting on the Court for seven months. The failure to retain her, or even to interview her in the Senate, means that she has been essentially fired for no reason other than Governor McAuliffe was exercising his right under our Constitution to make a recess appointment. Yes, again, the Constitution says that the Governor has the ability to make a recess appointment and the Legislature should then act to confirm that appointment when the session reconvenes.

In Virginia, we have typically ratified gubernatorial appoints. In fact, there have been thirty-one consecutive appointments made by the Governor and then approved by the Legislature. And no sitting Supreme Court Justice has been fired for over one hundred fifteen years. One has to wonder about the extent to which Potomac Fever has been moved down I95 to the Capitol in Richmond.

Two weeks ago, the House Courts of Justice Committee even unanimously approved of Justice Roush as being qualified to serve on the court. In response, how did the Republican-controlled Senate respond? Deafening silence!

Ladies and Gentlemen, Justice Antonin Scalia will never return, but we have the chance to return Justice Roush to the Virginia Supreme Court. I encourage us to do so, sooner rather than later.

A Deal on Guns?

January 29, 2016 by David Toscano

One of the biggest surprises of this General Assembly Session to date involves a possible deal to enhance gun safety in the Commonwealth. On Friday, January 29, Governor McAuliffe and Speaker Howell proposed a deal involving concealed carry permit reciprocity, enhanced background checks, and greater protections for victims of domestic violence. The deal is still not finalized, because a number of bills will have to pass and be signed by the Governor before all of the measures take effect. Much of the Capitol was surprised by the proposal, which apparently originated after the NRA approached the Governor’s office to see if anything could be done to restore concealed permit reciprocity agreements that Attorney General Herring recently stated he would not enforce because a review was not done of the other states’ permit requirements, as current law specifies. The proposal, as it is emerging, has three basic components:

Virginia will continue to recognize concealed carry permits from other states as was done prior to the Attorney General’s action of several months ago. It has been my view that we should not allow a state with less stringent criteria than Virginia to control who should be able to carry concealed in our state. Virginia has specific criteria for concealed permits and it is only common sense that non-Virginians also meet our criteria in order to exercise the privilege of carrying a concealed weapon in the Commonwealth.
Victims of domestic violence will gain greater protection, something we have advocated for years. Under the proposed deal, a person subject to a protective order that has been adjudicated by a judge will not be permitted to own, possess, or transport a firearm for as long as the Order is in effect. Concrete data exists that shows this change will actually save lives; there have been four reported gun deaths committed by former partners after a protective order was issued. I have offered and supported bills like this in the past, all of which had been previously killed by the more strident gun groups.
We would expand background checks at gun shows. Last year, I proposed such a measure which was defeated in subcommittee. Under present law, licensed dealers at gun shows have to conduct a background check of every person who attempts to buy a firearm. Private sellers at the shows, however, do not. This has been called the “gun show loophole.” Under the deal, private sellers would not be required to conduct a background check, but if they have any concerns about a person seeking to buy the firearm, they could request such a check be done by the State Police in advance of selling the firearm.

While this deal is not perfect and there is much work that remains, it represents a major step toward gun safety. It remains to be seen if the “gun groups” will support any deal, but passing bills like these would go a long way to improve the feeling of safety and security among domestic violence victims and within our communities. It is important to stress that we would not have gotten here without the courage of Attorney General Herring and the actions of our Governor.

I am most interested to hear how my constituents feel about this proposed deal. Several votes will be taken in the next week or two, and it will be good to hear from citizens with any concerns that you have.

In other news, we continue our efforts to elect Supreme Court Justice Jane Roush to a full term on the bench. On Wednesday, she was deemed qualified in a unanimous vote by the House Courts of Justice Committee. The Republican leadership has been critical of Roush, but has never really presented a rationale for why she should be fired. If she is ousted, it will be the first time a sitting Supreme Court Justice has been removed in over 115 years. The only apparent reason is the Republican leadership did not like the way Governor McAuliffe handled the appointment. At present, the candidate of the Republican leadership does not have sufficient votes to be approved by the Senate, with the result that we are deadlocked. If the appointment is not made by the end of the Session, Governor McAuliffe has the opportunity for another “recess appointment,” and is likely to reappoint Justice Roush. We will then do this again in January 2017. This entire situation is extremely troubling because it is further politicizing the selection process.

My resolution, HR75, which commends the Virginia Statute on Religious Freedom and condemns the statements of those that would argue that Muslims should be prohibited from entering the United States because of their religion was passed this week. Two of my other bills, HB935, a bill to extend foster care services to youngsters over the age of 18, and HB915, a measure that will allow localities like Charlottesville and Albemarle who have video dashboard monitoring systems on their school buses to report violations of unlawful passing, continue to move forward and may come to the floor next week. I am hoping that each of these measures will be passed and become law.

The Democrats in the House have been reenergized by eight new Democratic members who took their seats in January. As Leader, this is making a dramatic difference as we advance our proposals in the House.

Redistricting Special Session Falls Apart

August 20, 2015 by David Toscano

Democratic plan remains before the Body

The special session on redistricting called by Gov. Terry McAuliffe to redraw congressional lines that had been ruled unconstitutional by the District Court fell apart on Monday, August 17, 2015, largely over a Republican effort to fire a sitting Supreme Court Justice, Jane Marum Roush. Since there is much public confusion about what actually happened, I will try to provide you some background.

On October 7, 2014, the Federal District Court for the Eastern District of Virginia ruled that the 2012 General Assembly redistricting for the House of Representatives was unconstitutional, holding that the 3rd Congressional District was an improper “racial gerrymandering.” The U. S. Supreme Court rejected the appeal of this decision by the House Republicans in March 2015. On June 5, 2015, the Federal District Court reaffirmed its decision and directed the General Assembly to draw new lines by September 1, 2015. In response, on July 16, 2015, Governor McAuliffe called for a special session to commence on August 17, 2015, in order to fix the problem. He then sent a letter to House and Senate Democratic and Republican leadership requesting that they return to Richmond in advance of the special session to develop a bipartisan map that could be passed. The Republican leadership immediately rebuffed the Governor and refused to meet. When this happened, House and Senate Democratic leadership moved independently to produce a map that could pass constitutional scrutiny. After considerable work, Democrats provided a new map and it was introduced as legislation in both the Senate and the House. The bill can be accessed here. An explanation of what the proposal does can be found here.

We believe that our map corrected the constitutional problems with the old map, but it is not likely to be considered by the House Privileges and Elections Committee or by the Senate. After the Senate adjourned on Monday, the House Privileges and Elections Committee, the group that would consider our bill, adjourned as well, interrupting a speaker in mid-presentation and calling a halt to the public hearing on redistricting which had brought citizens from throughout the Commonwealth to testify. The Democratic Plan remains before both the Senate and the House, but will not likely receive a vote. (Republicans in the Senate stated on Monday that they were not going to produce or consider a plan, one of the arguments used by the Senate in supporting its motion to adjourn.) The result will likely be that the federal court will draw new lines for the House of Representatives sometime after September 1, 2015.

The redistricting issue got caught up in the debate over whether to retain Justice Roush on the Virginia Supreme Court. As is the Governor’s prerogative under the Virginia Constitution, he appointed Justice Roush to the vacancy created by the retirement of Justice LeRoy F. Millette, Jr. in April. This appointment occurred after a lengthy and public process conducted by the Governor’s office to vet a number of candidates with Bar Associations across the state. After completing of the vetting process, the Governor announced Justice Roush’s appointment on July 27, 2015, having received the endorsement of Republican Delegate and House Courts of Justice Committee Chair Dave Albo. Once the announcement was made, however, the Republican leadership cried foul, and stated that not only would they choose their own candidate, but that they would not even extend the courtesy of an interview to Justice Roush. If she had been removed, it would have marked the first time in 115 years that a sitting justice was taken off the court in Virginia.

Not once did the Republicans question Justice Roush’s qualifications, preferring instead to focus on the fact that the Governor did not request their approval in advance. They maintained this position throughout the day on Monday, August 17, and tried to push through their own candidate. They were foiled in the Senate, where their candidate failed to obtain a majority vote necessary, due to a 20-20 tie. The Senate, having been informed by the Republicans that no redistricting plan would be offered, then voted to adjourn. As a result, Justice Roush keeps her position until her present appointment expires on September 16, 2015. Republicans claim that the Senate adjournment is unconstitutional, but the Senate has adjourned and shows little interest in returning to Richmond. If the General Assembly is no longer “in session,” the Governor can make another “recess appointment,” and there is much speculation that Gov. McAuliffe will reappoint Justice Roush to the position. This will likely result in a repeat of this debate in January, as she would require confirmation by the House and Senate.

Consequently, when the dust settled Monday late afternoon, we were left with the following:

Justice Roush retains her appointment as a Justice of the state Supreme Court at least until it expires on September 16, 2015.
Since the Senate has adjourned, no bills for redistricting can be taken up and passed, even if the House were to produce such a bill.
Democratic Leadership still has a bill before the body, but it is unlikely that this bill will be considered by the General Assembly prior to September 1, 2015.
Numerous members of the public were denied the opportunity to speak on redistricting issues or on the Democratic plan that had been proposed, since House Republicans have adjourned the Privileges and Elections Committee.
The Federal court will likely draw the new congressional lines.
We will need to work hard to repair the numerous hurt feelings and bring some bipartisan conciliation to the General Assembly.

As always, it is a pleasure to serve the 57th District in Virginia’s House of Delegates. Please do not hesitate to contact me with any questions or comments on matters before the Commonwealth.

Sincerely,

David Toscano

P.S. As many of you know, former UVA professor and civil rights icon Julian Bond, died last Sunday. My floor speech in memory of Julian Bond can be viewed below.

Hearings for VA Supreme Court Nominee

August 13, 2015 by David Toscano

[su_box title=”FOR IMMEDIATE RELEASE” box_color=”#336699″]Contact: Carmen Bingham
(434) 220-1660
carmen@davidtoscano.com[/su_box]

Friends,

I wanted to pass along this article that recently appeared in the Richmond Times-Dispatch. I think it accurately captures the differing perspectives. I will continue to work with Leader Saslaw and other Democrats to ensure that the rule of law is applied in a fair and transparent manner in the Commonwealth.

Please do not hesitate to contact me if I may be of assistance.

Sincerely,

David J. Toscano

Democrats urge ‘fair, and open hearings’ on Supreme Court justice

Democratic leaders in the General Assembly have sent a letter to Republican leaders who control the legislature urging “full, fair and open hearings” in the judicial selection process for state’s highest court. The Aug. 7 letter, sent by Senate Minority Leader Richard L. Saslaw, D-Fairfax, and House Minority Leader David J. Toscano, D-Charlottesville, is one of a series of letters and petitions sent to Republican leaders in support of state Supreme Court Justice Jane Marum Roush. Governor Terry McAuliffe appointed the former Fairfax County Circuit Court judge last month to fill the Supreme Court vacancy created by the retirement of Justice LeRoy F. Millette, Jr. Republican leaders have announced that they will support a different candidate — Court of Appeals Judge Rossie D. Alston Jr., — when the legislature reconvenes Monday in a special session to tackle congressional redistricting.

Republicans were angered that the governor did not more extensively collaborate with them on his recess appointment of Roush — a well-regarded judge who presided over the trial of Beltway sniper Lee Boyd Malvo. Roush had bipartisan backing in Fairfax County. Her supporters include Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee. The governor said the removal of a justice from the court would be unprecedented and termed the GOP plan to replace Roush “a political temper tantrum” that would “kick this woman to the curb who has served with distinction for 23 years.”

As of Monday evening, there appeared to be no movement from House Republicans on their intention to replace Roush with Alston. “The House position has not changed,” said Matthew Moran, spokesman for House Speaker William J. Howell, R-Stafford. Albo could not be reached for comment. The Virginia Constitution gives the governor the power to make judicial appointments while the General Assembly is in recess; however, all judicial appointees must be certified by the legislature, and any interim appointments must be approved by the assembly or they expire 30 days after a legislative session convenes. The legislature could elect Roush to a full, 12-year-term or select another candidate to fill the vacancy.

“The Constitution makes very plain that it is the General Assembly that has this responsibility, not just the Republican caucuses of the House and Senate,” Saslaw and Toscano wrote in the letter sent to the chairmen and membership of the House and Senate Courts of Justice Committees, and to House Speaker William J. Howell, R-Stafford. The letter urges committee leaders to “convene full, fair and open hearings … to consider the respective qualifications of Justice Roush and the Republican Caucuses’ candidate for election to the Virginia Supreme Court. This process should be completely open to the public, should offer all committee members a chance to pose question to both Justice Roush and Judge Alston, and should consider public comment from concerned citizens who might want to participate in this decision,” the letter says.

A bipartisan group of more than 100 female attorneys also wrote to Republican leaders of the Virginia General Assembly urging them to not use Roush’s appointment as a “political tool in partisan party politics.” Roush also received support from the Fairfax Bar Association. An online petition urging her retention has garnered more than 800 signatures.