(Posted November 2, 2023) The recent paucity of meaningful opinion days has left me scrambling for ways to title essays like this, where I don’t have a new opinion to analyze. The Robes by the scenic banks of the James leave us hungry again today — those poor folks following Vlaming v. West Point School Board will now be waiting more than a year after oral argument for a ruling — so as long as I’m here in Washington, DC, the birthplace of Marvin Gaye, I thought I’d channel his muse. Because of the format of this website, I can only provide the lyrics; you’ll have to hum the tune as you read.

Advance report from the ABA Appellate Summit

That’s why I’m here in the District, of course. The Appellate Judges Education Institute begins in a couple of hours. It’s the inspiration for the Virginia Appellate Summit and is the best nationwide gathering of appellate advocates and jurists. This afternoon features a “fireside chat” with Justice Kavanaugh; Saturday morning we’ll get a similar conversational interview with US Solicitor General Elizabeth Prelogar. There’s a reception tonight at the Library of Congress, and by tradition, at least one of Those Other Robes will be there, meeting and greeting star-struck appellate lawyers and judges from the provinces.

Each year, I accumulate far more MCLE credits than I can even carry over to the next year, from my teaching schedule. This event is where I come to learn, and some of the best appellate minds in the country are here to provide that.

For those of you already looking to next year, the 2024 gathering will be November 14-17 at the Westin Boston Seaport District in Massachusetts. The last time I was in Boston other than to change planes was 30 years ago. Hope to see you at that one, too.

More writ grants and a new session

Meanwhile, on the correct side of the Potomac, the Supreme Court of Virginia has issued four more precious writs from the panels that met last month. There were 36 petitions on the writ docket, so we should be content with an 11% grant rate.

Of these four writs, three are in criminal/traffic cases. In the Old Days, before CAV expansion, criminal writs were fairly rare and civil appeals dominated the merits docket. Now that he first batch of civil appeals under the new protocol have filtered their way up through the system for SCV review, I’ll be watching carefully to see when — and if! — the previous ratio returns.

Meanwhile, the Supreme Court’s November session has come and (by the time I’m typing this at about 10:30 Thursday morning) gone. The justices entertained argument in just six appeals, including one SCC case and four criminal appeals. I expect rulings in most of these before the calendar turns to 2024. But even if the court decides them all by then, this will be the smallest annual crop of opinions since perhaps the Civil War. As I’ve mused here before, most of that dip in output is because of Senate Bill 1261. But I believe that a significant cause is a conscious decision by the justices to hear fewer merits cases.

A troubling new development on judicial screening

I learned last week that state legislators are now seeking fewer perspectives on nominations to fill appellate-bench seats. The Court of Appeals of Virginia will soon experience a vacancy when the learned Judge Bob Humphreys retires. Usually the judicial committees in the General Assembly cast a wide net, seeking input from several statewide bar associations on the crop of candidates.

This year, it’s different, or so I’ve been told. The only group whose views the legislators want this time is the State Bar. To be fair, the VSB has always been the 800-pound gorilla among the many bar associations; getting its endorsement is the top priority for candidates because of its outsized weight. But I invite you to consider the views that this new policy excludes:

  • The two tort bar associations, the Virginia Association of Defense Attorneys and the Virginia Trial Lawyers Association
  • The Old Dominion Bar Association (minority lawyers), the Virginia Women Attorneys Association, the Hispanic Bar Association of Virginia, the Asian Pacific American Bar Association of Virginia
  • The Commonwealth’s oldest and largest voluntary bar group, the Virginia Bar Association

I may be inadvertently omitting one or more others, but that’s a reasonably comprehensive list of the groups who have traditionally offered their views.

I’ll add one point despite its flaming obviousness: The most important factor in the decision on who will replace Judge Humphreys is probably not a bar endorsement but next week’s election. The legislature elects judges and justices, and if one party or the other emerges from the General Assembly elections with control of both chambers, well …