McAuliffe: State justices ‘scared,’ felon voting decision makes no sense

By Travis Fain, Daily Press – 8/17/2016

RICHMOND – Gov. Terry McAuliffe stood by his criticism of the Virginia Supreme Court Tuesday, saying he could only see politics behind the felon voting rights decision that went against him last month.

The four justices who decided that case “twisted themselves in knots, like a pretzel,” to agree with Republican General Assembly leaders who had sued the McAuliffe administration. It’s the General Assembly, the governor noted, that elects judges in Virginia.

McAuliffe’s comments followed a Monday morning radio interview during which he told WIQO Lynchburg that the justices, “were scared” to go against the legislative majority, “and wrote an opinion that absolutely makes no sense.”

Speaker of the House William Howell and Senate Majority Leader Thomas K. “Tommy” Norment, who brought this case to strip voting rights from felons whose rights McAuliffe had temporarily restored, blasted the governor Tuesday.

“Once again, Gov. McAuliffe has demonstrated his outrageous disdain for the two co-equal branches of Virginia government of which he is not a member,” Norment, R-James City, said in a statement. “In so doing, he disregards the Constitution of Virginia and diminishes the foundations of the Commonwealth’s government.”

“If this governor wants to run a dictatorship,” Norment said, “he should drive one of his GreenTech cars to South America.”

GreenTech is a controversial electric car company that McAuliffe helped found, but left as he began his 2013 run for governor. As luck would have it, the governor planned to fly Tuesday afternoon to Colombia for a three-day economic development trip in the South American country.

Howell, R-Stafford, called McAuliffe’s remarks “an attack on the Supreme Court as an institution and all of its members, former and present.”

“The governor is free to disagree with the court’s ruling, but it is wholly inappropriate to question the judicial integrity of the justices,” Howell said in his written statement.

The state’s Supreme Court justices declined, through a court spokeswoman, to comment on the matter. Judicial ethics forbid them from engaging in this sort of back-and-forth, attorneys said.

Of the four justices who voted against McAuliffe in this case, Justice Elizabeth A. McClanahan, is up for re-election first, in 2023. The next, Chief Justice Donald W. Lemons, will hit the court’s mandatory retirement age before his 12-year term ends in 2024.

Terms for the other two, Justices D. Arthur Kelsey and Stephen R. McCullough, end in 2027 and 2028, respectively. Suggesting any of them are worried that their re-election hinged on this case, “doesn’t bear with reality,” Virginia Beach appellate attorney Steven Emmert said Tuesday.

“Who’s going to be the speaker of the House in 2027?” said Emmert, who argues most of his cases before the high court. “You don’t say that kind of thing about jurists. That’s one of those inflexible rules.”

McAuliffe, who has a law degree, argued from the beginning of this case that the state constitution’s language laying out his clemency powers gave him the ability to restore voting rights via sweeping executive orders, covering an entire class of people. He used that logic to restore rights to more than 200,000 people – anyone in Virginia who had completed their sentences and supervised probation.

Republicans said McAuliffe was abusing his power and noted that he was the first Virginia governor to take this path. Restorations must be done one at a time after a case review, they argued. They sued in the Supreme Court and won, 4-3.

Howell said the four justices who went against the governor have more than 50 years combined judicial experience, including two decades on Virginia’s highest court. He called them “widely respected jurists,” all of whom were elected with bipartisan support.

Norment called the governor’s comments “disrespectful and contemptible.”

“His attempt to blame others for having his own misguided overreach of executive authority thwarted is despicable, but not surprising,” Norment said in his statement. “His questioning of the justices’ motivations, however, demonstrates a contempt for all who do not capitulate to his agenda.”

McAuliffe spokesman Brian Coy brushed aside suggestions Tuesday that the governor’s remarks could give people across Virginia reason to question a wide range of court decisions. He noted the unusual nature of this case: The plaintiffs named the judges.

McAuliffe, Coy said, “does have faith in our judiciary.”

Or as McAuliffe himself put it after a groundbreaking ceremony in Richmond: “I respect the Supreme Court, but they were just dead flat wrong.”

Virginia’s unusual method of electing judges has been questioned for years, but even critics typically add a caveat: It ends up naming strong judges. The process is opaque, though, with local legislators huddling in secret to reach consensus on circuit, district and domestic court judges who are then elected by the full legislature.

Partisan control of the General Assembly often comes into play, particularly with statewide elections to the Appeals Court and Supreme Court. Last year, McAuliffe appointed then Circuit Court Judge Jane Marum Roush to fill a seat on the Supreme Court that opened while the Republican-controlled General Assembly was out of session.

Republicans declined to confirm her for a full term, and the two sides fought back and forth for months. Eventually Republicans named their own new justice: McCullough.

Reached by telephone Tuesday, Roush declined to comment on McAuliffe’s latest thoughts. So did University of Virginia Prof. A.E. Dick Howard, who helped write the state constitution and whose anlysis McAuliffe has leaned on more than anyone else’s in this case.

Howard argued that McAuliffe had the authority to restore rights en masse.

Quentin Kidd, a political scientist at Christopher Newport University, said he sees this episode as a continuation of the hate fest between McAuliffe and the GOP majority, with the court caught in between again, as it was over Roush’s appointment.

“I think McAuliffe was really jabbing at the legislature more than he was jabbing at the court,” Kidd said. “They hate each other.”

Fain can be reached by phone at 757-525-1759.