Lawmakers to get brief shot at filling judicial vacancies

Partisan fighting derailed the appointment of judges during the state legislature's regular session this year.

Now court officials across Virginia, including in South Hampton Roads, are waiting to see whether politics will continue to stall judge selections when legislators return to Richmond for Wednesday's veto session.

Judicial appointments in Norfolk and Virginia Beach have been at the center of the bickering. Altogether, seven judge seats in four south side cities are in limbo.

If lawmakers can't come to an agreement - and some predict that they won't - Gov. Timothy M. Kaine would fill the vacancies with interim appointees who would have no guarantee of keeping the jobs when the General Assembly convenes next year.

"The fact that we disagree about who is the best-qualified person to serve on the judiciary, I think, is normal," said Del. W.R. "Bill" Janis, a Henrico County Republican, who chairs the House judicial systems panel that vets candidates for judgeships. "What you have here is an unprecedented problem."

Failing to elect judges "would be reckless, irresponsible and inexcusable," he said.

In Norfolk, substitute judges have helped handle the caseload of the two absent judges.

A shift in political power in the legislature contributed to this year's contentiousness.

Since 2000, Republicans had held a majority in both houses and were able to name judges of their choosing, often with Republican ties. But this year, Democrats began the session having won a two-vote majority in the Senate. They have demanded more say over filling state court vacancies, causing friction with Republican senators and the GOP-controlled House of Delegates.

Over the years, legislators have shown little support for changes to the selection system to ease the partisanship, especially when the balance of power changes, observers say.

"I don't know how to avoid that element of human nature that says, 'If I've been treated less than fairly, I'll do the same to them,' " said Jack Harris, executive director of the Virginia Trial Lawyers Association. "It's tough to prevent or avoid."

Virginia Beach and Norfolk are at "ground zero" in the legislature's impasse this year, said Sen. Kenneth Stolle, R-Virginia Beach.

For about a decade, politicians who represent Virginia Beach and live within the city limits have selected nominees to fill court vacancies there. During most of that time, a Republican majority has controlled the nominations.

But this year, Sen. Yvonne Miller, a Norfolk Democrat, flexed her party's newly won political muscle. Miller, who represents portions of Virginia Beach but does not live there, was excluded when the Beach delegation met to consider its judicial selections.

Most of the delegation's members supported City Attorney Les Lilley for a vacant Circuit Court seat. Miller, however, disagreed with their choice; she favored elevating General District Judge Gene Woolard to the post.

Under Senate rules, neither name can move forward without the consent of the entire Virginia Beach delegation.

In March, Stolle unsuccessfully proposed a rule change to require agreement from only a majority of legislators in a judicial circuit.

"I find it intriguing that you want to change a rule that worked very well when a different party was in power," Miller said at the time of the vote, which Democrats defeated.

Stolle has pledged that future Beach judicial nomination meetings will include legislators who represent any part of the district.

In retaliation for the Beach stalemate, Republicans have blocked two Democratic appointments to the Norfolk Circuit Court bench - Commonwealth's Attorney Jack Doyle and Juvenile and Domestic Relations District Judge Jerrauld Jones.

Complicating matters was the Senate's refusal to reappoint Norfolk Circuit Judge Chuck Griffith to a second eight-year term, citing concerns about his courtroom demeanor and rulings he made that were overturned by higher courts. No one has been nominated yet to the seat he will vacate this month. Before taking the bench, Griffith was Norfolk's commonwealth's attorney, elected as a Republican.

Some legal observers say Virginia's method of selecting judges invites political clashes. Virginia is one of two states that give legislators the exclusive right to name judges. The other is South Carolina.

Virginia, however, has been alone in leaving the process entirely in state legislators' hands. More than a decade ago, South Carolina, like a majority of states, created a judicial merit selection system. A 10-person commission made up of legislators and members of the public screens candidates and picks the most qualified, said Malia Reddick, director of research and programs for the American Judicature Society, in Des Moines, Iowa.

The South Carolina commission conducts background checks, interviews and tests each candidate on court procedure. It also receives advice from the state's bar association and a citizens' committee before submitting as many as three candidates to the legislature for a vote.

"There's more of an emphasis on qualifications rather than which candidate has the strongest political connections," Reddick said.

The 1990s saw several failed attempts in Virginia to pass bills creating judicial nominating commissions composed of local citizens. For a time, former Sen. Nick Rerras used a "citizens committee" to screen judicial candidates. But Rerras, then the sole Republican in Norfolk's delegation, named all the members of the committee, and its membership remained anonymous.

"If you look back at history, each party, when out of power, is a staunch advocate of merit selection," said Jack Donohue, former chair of the judiciary committee for the Virginia Bar Association.

Once the majority shifts, he said, support for reforming the judicial selection process shifts, too. The Virginia Bar Association has generally been supportive of merit selection, Donohue said.

Some observers hope a system lawmakers approved in 2002 to evaluate the performance of judges will help buffer future judicial selections from partisan battles.

The system relies on feedback from attorneys, jurors and others. Legislators will review those assessments as part of the record they will use in deciding whether to reappoint incumbent judges.

Although the program was enacted several years ago, 2009 is the first year that judges up for reappointment will have had a sufficient number of performance evaluations for legislators to review. Under the system, judges receive a copy of the evaluations as a report card of sorts.

That legislation was carried by former Virginia Beach Del. Bob McDonnell, a Republican who is now state attorney general.

"We didn't just want a couple of lawyers sitting around drinking coffee and picking judges," said McDonnell. "That's why it's very important that there be a merit-based system."

Michelle Washington, (757) 446-2287, michelle.washington @pilotonline.com

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com