Schapiro: Here come the judges, here come the judges
By Jeff E. Schapiro, Richmond Times-Dispatch – 12/3/2020
With Republican Mark Christie’s departure for the national agency that oversees the utility industry, the Federal Energy Regulatory Commission, the Virginia legislature — make that, Virginia Democrats — will fill another seat on the state agency that oversees nearly all industry, the State Corporation Commission (SCC).
With Gov. Ralph Northam’s choice of Angela Navarro, an environmental lawyer and former sub-Cabinet secretary, it will be the second time in two years Democrats pick a new commissioner. The SCC will be the first judicial agency — it also is a regulatory body — fully reoriented by Democrats since they took back the General Assembly in 2019. That’s because Democrats will have installed two of the SCC’s three members, presumably nudging it to the left of Dominion Energy.
You ain’t seen nothing yet.
When the General Assembly returns next month — largely virtually because of the pandemic; of indeterminate duration because of politics — its agenda is expected to include a proposal overlooked beyond legislative circles and the legal profession: an expansion of the Virginia Court of Appeals. The intermediate court would grow from 11 judges to, perhaps, 15, at a possible cost of $6.5 million — a mere bagatelle even in a $135 billion budget pruned by nearly $3 billion because of COVID-19.
The proposal, backed by the judicial Establishment and lawyers and business groups, could set off a feeding frenzy, with Democrats filling those new seats with their pals, perhaps elevating judges from lower courts and generating vacancies across the judiciary. This is political patronage, sanctioned by a state constitution that requires judges be elected by the General Assembly, and jealously guarded by those who control such elections — this time, Democrats.
Nothing quite brings the legislature to a full boil — sometimes a full stop — like a judgeship fight. It might seem small beer but to legislators it’s a big deal. That’s because judicial appointments are among the few perquisites reserved for delegates and senators, and — to their delight — because judicial ambitions can reduce muscular members of the bar to pliant mendicants.
Coupled with expansion would be a change far more significant than an increase in the number of appellate judges.
Virginia used to take defiant pride in being the last state to do anything small-d democratic, whether it was endorsing Social Security in the 1930s or elective school boards in the 1990s. It would join the 49 other states and the District of Columbia in guaranteeing an automatic right of appeal to a mid-level court or a court of last resort, according to the Judicial Council, an advisory arm of the Virginia court system, which recommends recalibrating the appeals court.
As Steve Emmert, a Virginia Beach lawyer and authority on appellate law, wrote on his blog, “About. Damned. Time.”
The Court of Appeals, created by the legislature in 1985 over the objections of Old Guard lawyers and judges and given limited jurisdiction, would see its authority broadened to include all civil and criminal matters. Its civil docket largely has been administrative issues, worker-injury cases and divorce and child custody disputes. On law and order, it is stoutly conservative — a reminder of Republican legislative dominance. In 2019, the court affirmed 1,500 convictions simply by refusing to accept appeals. It heard just 184.
Expanded jurisdiction of the appeals court would have a trickle-down and trickle-up effect.
Emmert said circuit court judges, accustomed to having the last word because of restrictions on appeals and rare reversals, will be mindful of appellate scrutiny because review would be available in all cases.
Plus, the appeals court could more fully filter matters that could go to the Virginia Supreme Court, the final stop in the state judiciary. Except for death penalty cases, rulings by the SCC and judicial and legal disciplinary questions — all of which automatically are heard — the justices take appeals by invitation only. That is, one must first make a case for the justices to hear it.
But who, as an appeals judge, considers these issues and the backdrop against which they are pondered; well, that’s where the rubber hits the robe. The 11-judge Court of Appeals, which lost its only Black male member to a federal judgeship, currently has 10 members. Only one is Black. She is among its three female judges. Eight judges are former prosecutors or government lawyers.
“It’s important that we get more diversity and broader ranges of experience,” said state Sen. Scott Surovell, D-Fairfax, leading the push for an expanded court.
Pair an enlarged court with Democrat-written, post-George Floyd police and criminal-justice reforms, it’s clear — at least to Senate Minority Leader Tommy Norment, R-James City — the new legislative majority wants to redirect a traditionally conservative judiciary, playing into the GOP claim that Democrats are soft on crime. Norment has no confidence Northam, post-blackface calamity, will stand in the way: “Not as long as he is on his turnpike of redemption.”