Schapiro: Jury’s out on whether lawmakers can agree on judges

By Jeff E. Schapiro, Richmond Times-Dispatch – 3/2/2022

For the past couple of weeks, about 10 legislators from both parties and both chambers have been meeting privately, taking baby steps toward closing another, albeit overlooked, divide separating House Republicans and Senate Democrats: picking judges — most significantly, two for the Virginia Supreme Court.

The Republican-dominated House of Delegates and the Democrat-controlled Virginia Senate have had their differences since the legislature convened in January. Some have been especially bitter and they are rippling through talks over how a split General Assembly, scheduled to adjourn March 12, fulfills a constitutional duty lawmakers take very personally.

“I know legislators love handing out robes,” says Steve Emmert, a Virginia Beach lawyer and authority on the appellate courts — the Virginia Court of Appeals and the Supreme Court, both of which have been the source of nasty tussles among delegates and senators for whom control of judgeships and control of political patronage are one and the same.

Indeed, when lawmakers talk about “my judges” — a term often heard in floor debates and committee hearings — they are just as often referring to the jurists they have personally selected as they are underscoring the concerns those enrobed men and women may have about the outsize impact of a wrinkle in state law.

While judgeship fights might seem routine — giving rise to Byzantine machinations, particularly in the closing hours of a General Assembly, when they often occur — the brewing brawl over vacancies on the Supreme Court is not just a partisan spat. It is one unfolding at an intriguing point for a court with a long tradition of conservative jurisprudence.

With the recent expansion of the appeals court — the legislature’s former Democratic majority added judges, many more moderate in their outlook; broadened the court’s jurisdiction to civil matters and guaranteed review of possible trial error — the Supreme Court, as the last stop for legal disputes, could be handling cases of greater consequence.

Court-watchers say that likely includes possible limits on police searches of stopped vehicles — an issue that can have a racial component because Black motorists have said they often are pulled over for reasons that have nothing to do with suspected criminal wrongdoing.

On civil issues, the seven-member court — currently, with a Black chief justice and with two women justices, one of whom is Black — may have to weigh in on the application of federal law to how a divorced couple in Virginia shares a military pension.

With the departures of former Chief Justice Don Lemons and Justice Bill Mims — it is rare the General Assembly fills two Supreme Court seats in a single session — logic would dictate each chamber gets one pick. Judicial selections are, at bottom line, the sole prerogative of the majority party. That’s 52 Republicans in the House; 21 Democrats in the Senate.

Logic, however, may have nothing to do with this exercise. That apparently is complicating discussions — within the House Republican Caucus and the Senate Democratic Caucus — and with each other, though those conversations, so far, have involved only the leadership. Talks, at this point, have been more about procedure than possible candidates.

That said, names are in circulation.

House Republicans have mentioned two appeals court judges, Randy Beales and Wesley Russell, both alums of the attorney general’s office and viewed as tough on law and order. Senate Democrats are floating the names of Stuart Raphael, an appellate judge who also worked in the AG’s office, and Fairfax circuit judges David Bernhard and Tom Mann.

The cascading effect of bumping judges from one court to another creates more opportunities to name more judges. For some legislators, that’s dessert’s dessert — too delicious to pass up.

Because at the legislature, as the old-timers say, everything is connected to everything else, it is difficult not to assess the maneuvering over judgeships without considering the backdrop.

Government is again divided and the early consequences have been somewhat poisonous. There are sharp disagreements between the House and Senate over policy — tax cuts, race teaching and voting and civil rights — as well as personnel, with appointees of Gov. Glenn Youngkin and Democratic predecessor Ralph Northam rejected in an escalating tit-for-tat.

Republicans believe they have the upper hand in the three-dimensional chess game that can be judicial appointments. Should the General Assembly fail to agree on Supreme Court picks — appellate and circuit judgeships, too — Youngkin would make interim appointments that ultimately would be subject to the legislature’s approval.

But Senate Democrats have signaled to Youngkin they’ll reject his selections if only out of revenge for what a Republican General Assembly did in 2015: It removed from the Supreme Court Jane Marum Roush, a respected Fairfax circuit judge, out of spite for the Democratic governor who appointed her, Terry McAuliffe, narrowly defeated by Youngkin in 2021.

A rerun of that episode may dampen the enthusiasm of some for a gubernatorial appointment to the high court, knowing they could be out of work in a year or less.

But there are trade-offs that could cause or clear a judicial muddle.

For example, might the House GOP restore Democrat Angela Navarro to the State Corporation Commission? In return for what?

It’s some of the stuff that judicial dreams are made of.

On Tuesday afternoon, in his office overlooking the state Capitol, House Speaker Todd Gilbert, R-Shenandoah, conferred with aides on judgeships. There had been speculation that both sides, which met for the first time about two weeks ago, would convene Tuesday evening, but the get-together was canceled because of a scheduling conflict.

“It’s a small subset of members in the majority parties trying to create some dialogue,” says Sen. Scott Surovell, D-Fairfax, a Senate negotiator. “You can’t have 52 Republicans and 21 Democrats in the same room. That would be a pretty thick soup.”

A House counterpart, Del. Rob Bell, R-Albemarle, chairman of the Courts Committee, says the talks “are not that far along.” And the House Republican majority leader, Terry Kilgore of Scott, says the inter-chamber negotiations had begun only recently because “you never do anything down here before the deadline.”

Guilty as charged.