ELECTION 2023: WHAT HATH VOTERS WROUGHT?
(APPELLATE EDITION)
(Posted November 8, 2023) You sensibly don’t come here for political news and views. But yesterday’s General Assembly election will have consequences in our field. That’s worth at least a brief note.
As most of you know, the legislature elects all judges in our fair Commonwealth, from the district-court level all the way up to the Supreme Court. Our framework requires that any judge, to secure a seat, must gain a majority of the votes in each legislative chamber. Even a unanimous vote in one chamber won’t get it done if the other chamber settles on someone else.
Yesterday, voters handed the keys to both chambers to Democrats. That means that beginning in January, Democrats will have the power to select any judges they wish, without input from Republicans. At least one of those future jurists will occupy an appellate seat: Longtime CAV Judge Bob Humphreys has reached the mandatory retirement age and will step down this winter.
The new legislative session will end the gridlock that has characterized the current General Assembly in the past year. Oh, to be sure, the legislature filled two seats on the Supreme Court, and one on the Court of Appeals, in its current makeup. But that seems like years ago. More recently, the two houses haven’t been able to bring the State Corporation Commission up to full strength, leaving it paralyzed with just one of three members until retired member Jimmy Dimitri stepped in on a temporary basis, just to make a quorum.
If yesterday’s election had resulted in continued divided control of the state house, I could easily see a continued impasse, no matter what damage this did to the Commonwealth’s position as a supposedly business-friendly state. I could also see a Republican-controlled chamber’s refusing to fill Judge Humphreys’s seat, or demanding its own candidate as the only alternative to such an impasse.
I mention this not to say that yesterday’s outcome was good or bad in terms of who won. I’m neither a D nor an R. But unified control of the legislature, in either party’s hands, means that benches will be filled. That includes the SCC and Judge Humphreys’s seat on the CAV. And because the newly constituted Democratic majority will be in full control of judicial selection for two years, it means that the Democrats will get to choose at least one other appellate jurist when CAV Judge Glen Huff retires the next year.
The Supreme Court, in case you’re wondering, is probably immune for now. That’s because the next Robes to reach mandatory retirement age are Justice Chafin in 2028 and Justice Powell two years later. I added the probably because we’ve seen several justices in a row leave the court before their mandatory retirement date. The last one to age off the court was Justice Lawrence Koontz in 2011. Anything can happen.
