[Posted August 10, 2015] I have two tales to tell in this essay. One is very, very good and the other is very, very bad. But before I comment on either, I’ll explain why this essay comes a week after the events.

So it’s early August, and the appellate courts are in recess for the summer. A nice, quiet time, where appellate activity is unlikely to develop suddenly. That made it the perfect occasion to take a week to drive my daughter across the country to deliver her to her graduate school in Los Angeles. (You recall my sentiment-laden description of her high-school graduation in June 2012. She finished college in three years. Not that I’m overly proud, mind you.)

Okay; so it wasn’t the perfect time. The news broke on Sunday evening, August 2, while I was in western Arkansas, that the General Assembly had chosen not to confirm newly-appointed (and newly sworn in) Justice Jane Roush upon the expiration of her temporary appointment, courtesy of the Governor. The legislature announced it would instead elevate Court of Appeals Judge Rossie Alston to the position created by the retirement of Justice Lee Millette.

Since the last essay I’d posted on this website before my trip was the appointment of Justice Roush, and nothing has appeared here in the interim, several of my readers have written to me, each asking a version of, “Are you going to say anything about this?” Yes, I am, and I’m sorry for the delay, but I trust you’ll appreciate the reason.

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We’ll start with the good news. Rossie Alston is an excellent jurist and an outstanding man. He has the kind of judicial temperament that an appellate lawyer wants to see on the bench: engaged and well-prepared, but never abusive. He will treat the lawyers at the lectern as fellow professionals. You should expect tough questions from him, but never nasty questions.

A quick digression on that: once upon a time, the Supreme Court occasionally contained a justice or two who would indeed ask nasty questions, and who would berate lawyers for the simple sin of urging a legal position that the justice disagreed with. Those justices are all gone now, and the well of the court is a terrific place to practice law, because the justices are pleasant, polite, and respectful.

Now, if you don’t want to face tough questions, I will gently suggest a career as a transactional lawyer.

Judge Alston will, upon his accession to the Supreme Court bench, become the 104th justice of the court by my count. Assuming the General Assembly elects him in the 2016 session, his term will begin in February. There’s a chance that that election could happen at the special session on redistricting later this month, though I’m not sure about that.

* * *

I promised you some bad news, and here it is: Jane Roush has become a pawn in a political battle between the Governor and the Republicans in the General Assembly. She didn’t ask for and didn’t deserve this treatment.

As you probably know, when a Supreme Court vacancy occurs when the General Assembly is not in session, the Governor can make an interim appointment that expires 30 days into the next legislative session, as I described above. The long-standing practice has been for the legislature to confirm the Governor’s choice. This is especially true where the Governor selects a capable person who’s well-respected on both sides of the political aisle. (Most Governors are smart enough not to choose a political hack, thereby provoking legislative countermeasures.)

In the course of all of our lifetimes, no Virginia General Assembly has taken a robe off a justice’s shoulders in a political spat with the Governor. It’s very rarely happened at the trial-court level, but never in an appellate court. Never. Never, until now.

No one in the legislature questioned Jane Roush’s credentials. Democrats and Republicans praised her selection. The Republican chair of the House Courts of Justice Committee stood beside the Governor when he introduced Judge Roush as the next Justice; the Republican chair of the Civil Subcommittee publicly stated that she would sail through the General Assembly.

But the Republicans in the Senate rebelled, claiming that, no matter how qualified she was, the Governor hadn’t consulted them before announcing his selection. They chose to make this a turf war, not over jurisprudential qualifications, but over political power. They torpedoed an illustrious judicial career in order to show the Governor who’s boss, making Jane Roush collateral damage in that turf war.

The worst part of this may be the legislators’ seeming utter indifference to what happens to the person at the middle of this. She has done nothing wrong, nothing to deserve this kind of treatment. She’s just standing in the path of the bullets. But that didn’t matter.

I’ll hasten to say that the Governor bears some of the blame for this. By all accounts, his only political contact with the legislature was to discuss his choice with the Courts of Justice chair, Del. Dave Albo. Knowing the possibility that this appointment might produce conflict between the two branches of government, it would have been wise – especially in retrospect, but this was a matter that could easily have been foreseen – for the Governor run the idea by far more legislators, particularly those in leadership positions in both chambers.

I should add that if you perceive that this essay suffers from a liberal bias, think again. I’m not a Democrat, and indeed that party wouldn’t have me, given some of my personal views. If I were to attend a party meeting and express some of those views, the chairman would be calling for Security inside of four minutes. (Same with the Republicans, by the way. They’d find me too “liberal,” just as the Democrats would think I’m too “conservative.”)

* * *

So where does Justice Roush go from here? I suppose that if she wanted it, the legislature would give her back her old seat in Fairfax Circuit, or perhaps Judge Alston’s post in the CAV. Either move would be an unprecedented demotion. With 22 years of judicial experience, she has plenty of VRS credit, so she may simply elect to retire. The world of mediation will no doubt call her promptly, and she might even find out that this move will produce a pay increase.

But whatever happens, she doesn’t deserve this treatment. From what I’m hearing, lawyers across the Commonwealth uniformly find this development to be monstrous. And they’re right; what’s happened here is appalling. And there’s no way to put the genie back in the bottle: the warring parties can’t retain Justice Roush without breaking a new promise to Judge Alston. Unless the legislature votes to increase the size of the court through the convoluted procedure in Art. VI, §2 of the Constitution – don’t hold your breath on that possibility – there’s no way both of them can sit on our state’s highest court. At least not for now.

One other thought has occurred to me: this development puts Judge Alston in a horrible spot. He has desired a seat on the Supreme Court for some time now, and suddenly, here it comes, but with some unspeakable baggage attached. I’ve read a comment or two that suggested that he refuse the appointment out of principle. But he can’t do that without offending the Republican power-players; doing that would probably mean that he would never get the slot.

I wish I could add a coda to this report, containing a happy ending. As far as I can tell, the only persons who are happy with this outcome are some (not all) of the Republicans in the legislature. The legislators have won this fight, as they will with virtually all battles over judicial appointments, given our division of powers.