Politics’ role in selecting judges condemned, defended
By Tim McGlone, Michelle Washington and Harry Minium
The Virginian-Pilot – February 12, 2007
Virginia remains the only state in the nation in which the legislature – specifically the majority party – wields all the power in the judicial selection process.
That has made appointing judges a perk and an opportunity for patronage.
According to state campaign finance records, some judges appointed to the local trial courts – or their family members – made hefty campaign contributions to the legislators who picked them. Most donations occurred in the years just prior to their nominations.
Several candidates for current judicial openings in Norfolk are following that trend.
Ira Lederman, father of Steven Lederman, a candidate for the Norfolk Juvenile and Domestic Relations Court, contributed $5,500 to Norfolk Sen. Nick Rerras and other Republicans over the past 10 years. Reeves Mahoney, the husband of circuit judge candidate Joan E. Mahoney, has given $500 to Rerras and a total of $10,800 to Republicans in the same time period.
Rerras, Norfolk’s only Republican in the Senate, decides who is nominated for judicial vacancies in Norfolk. Those nominees then are voted on by the General Assembly.
Ira Lederman gave Rerras $1,950, including $450 for food and drink at a fundraiser, between 1999 and 2005, according to the Virginia Public Access Project, which tracks campaign contributions. His son made just one $75 contribution to Rerras two years ago.
“I give to people I think are honorable,” Ira Lederman said. “It has nothing to do with my wife or my daughters or my son.”
He noted that he has not given Rerras any money since he wrote a $100 check in 2005.
Reeves Mahoney’s biggest donations went to Bob McDonnell, his former law partner and the state’s attorney general. The next biggest amount went to Mahoney’s college friend, Republican Randy Forbes, a former state legislator and now a U.S. congressman representing the 4th District.
The reappointment of Portsmouth Circuit Judge Dean W. Sword Jr. also has raised questions about the influence of money and politics. Sword, who gave $1,350 to Republicans just before his appointment in 1999, was selected after Portsmouth Democrats agreed to support him in exchange for the reappointment of Circuit Judge Johnny E. Morrison.
Now, Del. Ken Melvin, D-Portsmouth, has held up Sword’s reappointment, citing his lack of confidence in the judge’s ability. Melvin, an attorney, has said he was displeased with a courtroom experience in front of Sword.
Since 1870, the Virginia General Assembly has selected judges to serve the state’s criminal, civil and family courts.
For the decades last century that Democrats were in power, they filled open judge positions with little outside assistance. Republicans complained for years about the partisan process.
Republicans say they have improved the system since they seized power in 1999, creating citizens panels to assist in the selection process. Democrats say that is simply window dressing.
When power shifted to the Republicans, two people were left calling the shots for Norfolk: then-Del. Thelma Drake and Rerras. After Drake was elected to the U.S. House of Representatives, the power resided solely with Rerras.
Norfolk lawyer George Anderson sees that as a problem.
“He’s the king,” Anderson said. “He feels he can do whatever he wants.”
Rerras, who did not return phone calls over the past several days for this article, has had plenty of opportunities to exercise his power in the p ast few years, naming S. Clark Daugherty to the general district court and raising Alfred M. Tripp from his seat on the general district court to the circuit court.
Tripp, who was first appointed to the bench in 2003, provided more than $6,900 to the campaign funds of Rerras, Drake and other Republicans, according to Virginia Public Access Project records. In that time, Rerras chose one Democrat: Jerrauld Jones, a former state delegate who also headed the Department of Juvenile Justice.
In more than 30 states, voters elect judges. Sen. Kenneth Stolle, R-Virginia Beach, is opposed to that selection process.
“I don’t see how a judge could run for office and not have a conflict of interest,” Stolle said.
That would mean joining a party, raising money and accepting endorsements, he said. State law currently forbids sitting judges from actively participating in party politics, a prohibition Stolle prefers.
Rerras has sought input from professionals and a Citizens Judiciary Advisory Panel, whose members he picked himself.
The Norfolk and Portsmouth Bar Association, the Virginia Women Attorneys Association and the citizens panel interview and rate judge candidates, and forward their recommendations to Rerras.
Norfolk lawyer John Padgett heads the citizens panel, which sends its recommendations to Rerras. The panel’s deliberations and its membership are secret.
Padgett said keeping citizens panel members anonymous insulates them from campaigning by judge candidates.
But without publicizing at least the results of the interviews, if not the entire process, Virginia Beach lawyer Steve Emmert said, it’s impossible to know that for sure.
“If there’s going to be a panel, we ought to know who it is they recommend,” Emmert said. “If the delegation consistently ignores or obeys the panel, citizens ought to know that.”
Mary Commander, a judicial candidate who met with Rerras on Feb. 2, said he told her he had made up his mind whom to nominate before conducting any interviews.
She complained that he queried her on her opinions on abortion and used the word “femi-Nazi.” She said she felt pressured to join or give money to the Republican Party.
Rerras has denied he had made up his mind on the appointment and denied that he implied she give money to the party.
“Nick made some mistakes, and he’s learned from them,” Stolle said. “… By and large the system has worked very well.”
Del. Paula Miller, D-Norfolk, said Rerras consults the seven Democrats who represent Norfolk in the House and Senate. In the past, she said, Rerras has invited her to interviews of judicial candidates.
Rerras has not invited her to interviews this year, she said, but on Friday he e-mailed the recommendations from the citizens committee for the judicial openings to Miller and other Norfolk lawmakers. Rerras asked for their feedback by Tuesday. He had already forwarded recommendations from the Norfolk and Portsmouth bar and women attorneys associations.
“We don’t have the final pick,” Miller said. “But if we had some major objection, I think he would take that into consideration.”
Rerras’ interview with Commander was atypical of the selection process, said Del. Lionell Spruill Sr., D-Chesapeake.
“What my friend in Norfolk did was beyond the line,” Spruill said. “We’re not trying to get a Supreme Court judge here.”
Chesapeake’s selection process is inclusive and fair, he said, with the same questions asked of all candidates. Social issues such as religion and abortion are left off the table and both parties participate, said Spruill, whose district includes parts of Chesapeake and Suffolk.
“At least in Chesapeake we all get together,” he said. “At least they invite me and let me go through the motions.”
Padgett said Rerras listens to the recommendations made by the citizens panel.
“Every candidate selected since the process started has been in the highest group recommended by the committee,” Padgett said. “Based on the results to date, his choice and the committee’s recommendations have been aligned.”
Commander, Anderson and others advocated an independent review panel for judge candidates, with results that would be binding on legislators.
Some states use such a “merit-based” system, asking panels of lawyers, retired judges, citizens and others to interview and rank those who aspire to the bench. That panel presents a list of qualified candidates to legislators, who would be required to choose a judge from the list.
That’s the system recommended by the American Bar Association and currently in use in a handful of states.
Past attempts to make the process less political have failed.
W.T. Mason Jr., head of the South Hampton Roads Bar Association, said that years ago, when the Democrats still held power, Republicans pushed for changes.
Once the GOP gained control of the legislature, he said, “they were no longer interested in any changes. I don’t know how to convince them other than exposing the system and its flaws and inviting public discussion,” Mason said.
Attorney General McDonnell disagrees.
He said he succeeded, as a delegate, in pushing changes both in the selection and reappointment processes before he left the General Assembly in 2005.
Candidates for the Virginia Supreme Court and the Court of Appeals must be selected from a statewide merit panel. And he persuaded local legislators to establish citizens panels to make recommendations, something the Democrats never did.
Judges up for future reappointments will be scrutinized with evaluations by attorneys and jurors. The Virginia Supreme Court is phasing in that program. The General Assembly will be getting those evaluations when it considers future reappointments.
“We made dramatic reforms,” McDonnell said. “I think that it’s a good process now.