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The Right Note: Has It Come to This?

by Mark Kelly September 17, 2015 at 2:00 pm 0

Mark Kelly

The Right Note is a weekly opinion column. The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Today is Constitution Day. It is a time to remember the document on which our nation was founded.

 Unlike the process in the U.S. Constitution, the right to appoint justices to the Virginia Supreme Court does not rest with the executive branch. That right ultimately rests with the General Assembly according to the Virginia Constitution. A Virginia governor cannot even veto a justice they do not like.

 There is simply no other way to read it.

 Yes, the governor may make a temporary appointment. However, that temporary appointment expires 30 days after the General Assembly is called into session.

 The clock started ticking on the temporary appointment of Justice Jane Roush when the General Assembly convened on Aug. 17 for a special session Gov. Terry McAuliffe called on redistricting. The temporary appointment of Roush ended yesterday.

 In an unprecedented move, McAuliffe reappointed Roush yesterday. The problem is, he has no right under the Virginia Constitution to do so.

 The special session may have effectively ended shortly after it began on Aug. 17. That is when the 19 Senate Democrats were joined by one Republican and the lieutenant governor in voting to adjourn shortly after calling the session to order. The Senate Democrats not only refused to take up redistricting, but they also refused to take up the question of this Supreme Court appointment.

However, because one house of the General Assembly cannot adjourn for more than three days without the consent of the other, and the House of Delegates never offered such consent, the General Assembly officially remains in session. Another temporary appointment is simply not in order, at least if you are following the Virginia Constitution – a document the governor swore to uphold.

Yes, both sides are engaged in a political showdown over this Supreme Court nominee. However, the rule of law is on the side of the Republicans whether or not the governor disagrees with the assessment of the Speaker that the House of Delegates is still technically in session.

 And, whether you might like McAuliffe’s decision to stand up to Republicans as a political matter or not, any case that Roush were to take part in moving forward could later be challenged as invalid.

 A big question remains. Why did McAuliffe instruct the lieutenant governor to cast the tie-breaking vote to adjourn the Senate for a special session the governor called rather than having a public debate on redistricting and this judicial appointment? In so doing, he jeopardized any chance of reaching a civil conclusion on either question. Now, he has put the validity of future Supreme Court decisions in question.

 The governor should instruct the lieutenant governor and Senate Democrats to return to Richmond as soon as possible to do their jobs, not run away from them. Otherwise, while there is always plenty of blame to go around when it comes to political posturing, any blame for this potential constitutional crisis will belong primarily to the governor.

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