[Posted June 2, 2008] Last week, the US Senate unanimously approved President Bush’s nomination of Justice Steve Agee to a new term on the Fourth Circuit. That’s good news for the badly understaffed Fourth, but bad news for the Supreme Court of Virginia, which will soon find itself down to six justices. The last time that happened, late in 2007, Governor Kaine made an interim appointment of Justice Bernard Goodwyn, but that appointment almost expired in February before the General Assembly, acting on the last possible day, elected Justice Goodwyn (along with CAV Judge Leroy Millette) to a regular term.

Since then, the judicial election climate has been anything but peaceful; as I understand it, ten trial court benches now sit idle because the legislators have been unable to agree upon the men and women who would fill them. The problem reached embarrassing proportions this spring when CAV Judge Bob Humphreys, who was uncontrovertibly well qualified for reappointment, was left unemployed for nine days before he was retroactively reelected in a special session in April.

Virginia Lawyers Weekly has quoted one House Republican as saying that if the Governor makes any interim appointments, the House will refuse to elect such persons to full terms, no matter who they are. I earnestly hope that this was mere posturing by the Delegate, but I fear that it is not. By acting as they have, and by posing threats like this, the legislators have done significant (and perhaps irreversible) damage to the judicial selection process and even to the judiciary itself.

The hard question this presents is: Just who would accept a gubernatorial appointment in this situation, knowing that the duration of his tenure will be six or seven months? What capable member of the bar would give up his successful practice? What sitting judge would give up her established seat (remember, you can’t be a judge in two courts at the same time) for a short-term appointment? The only answers that I can conceive to these questions involve someone nearing retirement, from either the bench or the bar, whose concern about reappointment is nonexistent. If I’m right about that, then the General Assembly has shrunk the available pool of candidates to preposterously small proportions. And you know who will pay the price for that.