Last week, the Virginia General Assembly filled a vacancy on the Virginia Supreme Court. The name of the candidate finally selected to fill this vacancy — Stephen McCullough — was first revealed to the public only one day before the legislature voted to confirm his appointment. That’s a bad process.
Under Virginia law, the legislature — not the Governor — has the power directly to appoint judges when the legislature is in session. Last year, during a time when the legislature was not in session, Governor McAuliffe exercised his power to appoint a qualified judge, Jane Roush, to fill this vacancy. To be effective permanently, Governor McAuliffe’s interim appointment of Judge Roush required confirmation by the legislature once it returned to session. In the past, such interim appointments by Virginia governors routinely have been made and subsequently confirmed by the legislature.
However, in this case, the Republican leadership of the General Assembly claimed that they had not been adequately consulted and refused to confirm Judge Roush’s appointment. Last year, the Republican leadership quickly brought forward and recommended another qualified judge, Rossie Alston, as their preferred alternative appointment.
As this year’s legislative session began, Governor McAuliffe and the Republican legislative leadership continued to argue bitterly over whether Judge Roush or Judge Alston should be appointed. Since Republicans control both houses of the legislature, they bear full responsibility for managing the legislative calendar.
Let’s just assume only for purposes of this discussion that the Republican leadership of both houses of the General Assembly are correct that Governor McAuliffe did not consult them adequately about Judge Roush’s initial interim appointment. Let’s assume further that the Republican legislative leadership entered the legislative session in January legitimately believing that Judge Alston was a better choice.
Early in this year’s legislative session, the Republican legislative leadership should have arranged up or down votes for both Judge Roush and Judge Alston. Had the Republican leadership done so, they would have discovered that neither of these candidates had the votes to be confirmed. Then, there would have been time to bring forward and adequately vet alternative candidates. Instead, the Republican legislative leadership allowed this issue to drag on and on and on.
On Tuesday of last week, with only days left before the legislature was due to adjourn, the Republicans suddenly announced that they wanted to nominate former Virginia Attorney General Ken Cuccinelli to fill this vacancy. Democrats erupted with a storm of protest, and just hours later, Cuccinelli withdrew his name from consideration. A few hours after that, Republicans suggested for the first time that they wanted Stephen McCullough appointed. McCullough was confirmed the next day.
As long as the Virginia legislature retains the power to appoint judges, there will be a substantial amount of partisanship in judicial selection. However, because judges are supposed impartially to decide the cases before them, both legislators themselves and the people of Virginia should have a fair and adequate opportunity to evaluate and comment upon any proposed judicial candidates. The Republican legislative leadership could have provided that opportunity in this case, but they let the people of Virginia down by failing to do so.