Justice Barbara Keenan honored for a litany of first and years of service
By Alan Cooper, Virginia Lawyers Weekly – 5/25/2009
Supreme Court Justice Barbara Milano Keenan recalled that the first time she was up for a judgeship, she very much wanted to tell legislators considering her appointment that she was 30 years old.
But she was still two weeks shy of her birthday in February 1980, so she told a legislator who was taken aback by her youthful appearance that she was 29-1/2.
By this time, Keenan already had the support of the Northern Virginia delegation for a seat on Fairfax General District Court, which was tantamount to election since the General Assembly usually goes along with the recommendation of local legislators.
“I guess if Northern Virginia wants a 29-year-old judge they should have one,” the legislator said.
So Keenan became the first female judge in the state. Two years later, she became the state’s first female circuit judge. And she was the only woman appointed to the Virginia Court of Appeals when the intermediate appellate court was created in 1985.
In 1991, her appointment as the second female justice of the Supreme Court of Virginia produced another milestone: She became the first person to sit at all four levels of the state’s judicial system. (Fellow Supreme Court Justices Lawrence L. Koontz Jr. and LeRoy F. Millette Jr. now share that distinction.)
Earlier this year, Keenan received the endorsement of all the statewide bar groups for a seat on the 4th U.S. Circuit Court of Appeals.
In recommending her to Virginia’s two senators, Jim Webb and Mark Warner, the Virginia State Bar’s judicial nominations committee said they “could do no better … if they are looking for a person of the utmost integrity, legal acumen and judicial demeanor to represent Virginia on the Court of Appeal for the Fourth Circuit.” The senators have not yet recommended candidates to President Obama, who will make the appointment with the consent of the Senate.
Earlier this spring, Virginia Lawyers Media named Keenan one of 28 Influential Women of Virginia, and those women in turn voted her as the “Influential Woman of the Year.”
Keenan’s career parallels that of retired Court of Appeals Judge Johanna L. Fitzpatrick, who started at the Fairfax Legal Aid Society in 1974 at about the same time that Keenan became the first female prosecutor in Fairfax County. Fitzpatrick was elected to the juvenile and domestic relations district court bench and to the circuit court shortly after Keenan received her district and circuit court appointments.
Fitzpatrick was named to the appeals court in 1992 and served as chief judge for nine years before retiring in 2006.
The two have been “like sisters for about 35 years,” Fitzpatrick said. Keenan is “very well read. She thinks about things. She’s just an intellectually gifted person.”
McLean lawyer Joseph A. Condo, who started his legal career at about the same time Fitzpatrick and Keenan started theirs, and Supreme Court colleague Donald W. Lemons also use the “I” word to describe Keenan.
“She’s got a native intelligence that’s immediately apparent to you,” Condo said.
“She’s intellectually curious,” Lemons said. When she asks questions from the bench, the rest of the court pays attention because the other justices know that it has been well considered, he added.
Virginia Beach appellate specialist L. Steven Emmert, who appears before the court frequently, said “It is abundantly clear to me that she knows the record well in every case.”
When she asks a question, it “almost always goes to the dispositive issue in the case. … She respects that a lawyer has a limited amount of time to make his point.”
Although she was born in Austria – her father was a career Army officer – she grew up in Northern Virginia and graduated from Bishop Denis J. O’Connell High School in Alexandria.
After she graduated from Cornell University and the George Washington University law school, former Fairfax County Commonwealth’s Attorney Robert Horan hired her in 1974.
As a prosecutor, she got to see all the different roles in the judicial system and came to appreciate the challenges of being a judge and the importance of “treating each case as if it’s the only case in front of you,” she said.
She also was in court every day, and “I got to know a lot of people quickly,” in part because a woman litigator was such a novelty at the time.
She left the prosecutor’s office in 1976 and began a general litigation practice that included about 20 jury criminal jury trials over the next four years in addition to representation of small business, personal injury and family law clients.
Keenan’s profile continued to grow with her activity in the Fairfax Bar Association, where she served on its board of directors and as treasurer and then secretary. She also was appointed a commissioner in chancery and to the county board of zoning appeals.
When the general district seat opened up in 1980, she went to Horan for advice, and he encouraged her to seek the seat and introduced her to members of the legislative delegation.
She won the endorsement of the bar association and received the backing of the delegation for the seat.
Keenan said she took the bench with an appreciation from her family’s background of the fear and dread that many people have of the legal system.
Her grandparents were immigrants – her father’s family from Italy and her mother’s from Austro-Hungary – who settled in the West Virginia coalfields. They brought with them the belief that “you didn’t want to be involved with the law,” she said.
As a result, she says she is sensitive to the importance of making sure that those who appear in court understand why they’re there and walk away with a feeling that they have been heard and know what happened and why.
Judges at the appellate level must continue to be aware that the case in front of them involves real people, even though they probably won’t see the parties, and may have a very serious impact on them, she said.
But appellate opinions go beyond their effect on the parties, she said. “Explaining the law to the public and explaining it to the bar is extremely rewarding and challenging,” she said. “It’s very hard, and it’s very hard every day. It doesn’t get any easier with time.”
She said she hasn’t found the appellate bench to be as isolating as have some of her colleagues.
Trial judges see a lot of people, but much of the interaction is formal and highly structured so as to avoid too much familiarity between judges and lawyers.
Appellate judges, on the other hand, have “a lot of freedom in terms of personal friendships” because they are not as likely to be involved with attorneys and litigants who appear before them frequently, she said.
That said, she confesses, “I miss the dynamics of trials.”
Keenan’s chambers are in Northern Virginia, where they have been during most of her appellate tenure.
However, she moved to Virginia Beach in 1993 when she married Virginia Beach Circuit Judge Alan E. Rosenblatt. State law required Rosenblatt to live in Virginia Beach while he was on the bench, but he retired about five years ago, and the couple moved to Alexandria because of her mother’s poor health and the terminal illness of her father.
During her appellate tenure, Keenan has been involved in much of the two courts’ administrative work.
She took the lead in the development of the judicial performance evaluation program that has been suspended because the General Assembly cut the funding for it.
Some legislators were outraged by a court order that forbade them from disclosing the reports beyond the legislators. They contended that the court had no authority to order them to do anything that related to their legislative duties.
Keenan remains a strong advocate for the program. The reports are based on surveys of attorneys, jurors and juvenile court staff members and should help insure that the reappointment of judges is based on a broad look at their performance rather than anecdotes, she said.
They also provide an important learning tool for judges who get little feedback as to how they are performing their duties, she added.
And she is optimistic that legislators and the court can agree on a procedure that will give legislators the information they need for a fair evaluation and still limit disclosure of the reports to the public and media.
“I absolutely think that can be worked out,” she said.