Republicans escalate fight with McAuliffe over Supreme Court judge

By Jenna Portnoy, Washington Post – 8/19/2015

RICHMOND — Republicans on Wednesday warned Gov. Terry McAuliffe that his plan to reappoint the Virginia Supreme Court justice at the center of a toxic political showdown could subject her rulings to legal challenge.

McAuliffe (D) recently gave Jane Marum Roush a temporary spot on the state’s highest court, triggering a fight with Republicans that erupted during Monday’s special legislative session.

The day-long partisan brawl started with Republicans’ refusal to keep her on the job and ended with a strident McAuliffe’s promise to give her a second temporary stint on the court next month.

Democrats cheered and said the row would help them win back the Senate in November.

But Republicans said McAuliffe’s actions could not only cloud Roush’s tenure but also give aggrieved litigants reason to challenge her authority on the bench. A University of Virginia law professor and the principal draftsman of the current version of the state constitution agrees with them.

Republicans said McAuliffe’s willingness to risk tainting the political process confirms what the GOP has been saying since the longtime political operative and friend of Bill Clinton and Hillary Rodham Clinton set his sights on the governor’s mansion.

“We said we were going to see a Washington-style approach to governing take hold in Virginia,” said Del. C. Todd Gilbert (R-Shenandoah), a criminal defense lawyer and former prosecutor. “We have had battles with the Senate and governors, but I have never seen it this toxic and the only different variable in this equation is Terry McAuliffe.”

A spokeswoman for McAuliffe did not respond to requests for comment on the Republicans’ stance about Roush.

Senate Minority Leader Richard L. Saslaw (D-Fairfax) said the issue is a winner for Democrats.

“People are infuriated over this. We’re not going to just drop it. They went after a highly qualified woman because they didn’t like the governor,” he said Tuesday. “We’re doing all the right things. They’re just making huge mistakes.”

At issue is a procedural question about whether Monday’s special session was properly adjourned. When the legislature is not in session, McAuliffe may appoint a judge on an interim basis, but the appointment expires 30 days after the start of the next session unless lawmakers elect the judge to a full 12-year term.

Last month, McAuliffe appointed Roush to an interim spot on the state’s highest court. Because Republicans declined to affirm the appointment Monday, her tenure will expire on Sept. 16 — and McAuliffe vowed Monday to appoint her again.

Republicans had planned to unseat Roush and elect their own choice, Court of Appeals Judge Rossie D. Alston Jr., to a full 12-year term. When that failed, they planned to keep the session open so that McAuliffe would be barred from making another interim appointment. In both cases, a moderate Republican senator stepped in, voting against Alston’s nomination and supporting a surprise motion by a Democrat to adjourn the session altogether, thereby preserving McAuliffe’s right to appoint Roush a second time.

McAuliffe vowed to press on with Roush and issued his own warning.

“I’m not going to get into legislative strategy. I am very confident that Democrats will win the Senate,” he told reporters Monday. “And if they want to see judges done on their side, we’re going to have to see that fairness is done.”

Not so fast, said Republicans. They argued that only the Senate adjourned and the House is still technically in session — so McAuliffe’s power to make appointments does not kick in.

The situation is unheard of in Virginia, making the legal questions murky, but some believe that chaos could ensue.

A.E. Dick Howard, the U-Va. law professor, said if Republicans challenged McAuliffe’s authority to reappoint Roush, her judicial opinions could be in doubt.

“That would be sticky,” he said. “Presumably, the authority of that judge to preside over cases would be called into question.”

Steven Emmert, a lawyer based in Virginia Beach and publisher of Virginia Appellate News & Analysis, called the predicament “a mess largely without precedent.”

If a court eventually rules that Roush’s appointment was improper, he said: “I would expect losing litigants to pounce on it.”

That Roush’s current term on the bench expires in mid-September, in the middle of a week-long session of the Supreme Court, only adds to the questions, Emmert said.

“What happens to folks who have arguments [that day]? Who’s going to be sitting there, if anybody? Who will decide if there’s a legal challenge to who’s entitled to that seat?” he said.

Gilbert said a similar case played out in Pennsylvania in 1974. In the end, a court invalidated 680 gubernatorial appointments.

“There may be consequences for the governor acting as though the special session has ended,” Gilbert said, citing research from the Virginia Division of Legislative Services.

Sen. A. Donald McEachin (Richmond), an attorney and the Democrat who made the motion that abruptly ended Virginia’s session, said Republicans are wrong — but he declined to explain because the case may end up in court.

Ironically, it was David B. Albo, a Republican delegate from Roush’s home county of Fairfax, in Northern Virginia, who in his capacity as chairman of the powerful House Courts of Justice Committee recommended in May that McAuliffe appoint her.  Albo said he assumed the governor had cleared the political hurdles to getting her a full term.

“I think he should have called and vetted everybody, but, you know what, he’s got a lot on his plate. It’s tough to do your job perfectly every time,” he said.

Albo, who has served in the House for more than 20 years, said it never occurred to him the onus would be on him to get the GOP leadership to buy in.

“I didn’t know that it was my responsibility to do that,” he said. “If it was, I should have taken a more active role.”

Laura Vozzella contributed to this report.