Prompted apparently by a pair of articles in the Bristol Herald-Courier, here and here, several of my fellow Virginia bloggers have posts today about the pros and cons of the way that state-level, and especially trial court, judges are selected and appointed in Virginia.
Virginia is virtually unique in the United States in that is judicial selection and reappointment process is entirely controlled by the state legislature and goes back to the Reconstruction era, as the Herald notes:
No other state gives legislators more power in selecting judges than Virginia – one of just two states where legislature seats judges. In fact, judicial candidates must have the backing of at least one local legislator to be considered.
Though the process has evolved from the dominant party in the General Assembly ramming their preferred candidates through to the bench, there have been few broad reforms to the process, and it remains largely the same system as it was following the Reconstruction era.
A shifting political landscape in 1995 yielded the first administrative changes to the system, which sprung from a 20-20 split in the Senate between Democrats and Republicans. Instead of the majority party picking judges in closed-door caucuses, the divided assembly gave rise to a form of senatorial courtesy, which shifted the authority of nominating judicial candidates to local legislative delegations.
According to Senate rules, each lawmaker that represents part of a judicial circuit must sign a nominating form for a candidate, who would then automatically be placed on that chamber’s judicial appointment bill. If one senator withholds support, as one lawmaker did this session, the nomination is opened up to a floor vote – which would generally hew to the position of the senator whose party is dominant.
Scott White raises concerns about the propriety of the Assembly, which is made up of a lot of attorneys, choosing the judges that they and their fellow attorneys appear before:
One of my biggest concerns over the process we use to appoint and place our judges has in fact been that it is the General Assembly that does it.
A large part of our legislative body is made of of lawyers who have active practices in the districts they represent.
(…)
So what we have are legislators who are appointing judges and writing the laws that those judges are going to hold people’s actions against. And if that isn’t enough, those same lawyers are the ones who are going to be defending clients against the very laws they wrote and in front of the judges they appointed.
Virginia is virtually unique in the United States in that is judicial selection and reappointment process is entirely controlled by the state legislature and goes back to the Reconstruction era, as the Herald notes:
No other state gives legislators more power in selecting judges than Virginia – one of just two states where legislature seats judges. In fact, judicial candidates must have the backing of at least one local legislator to be considered.
Though the process has evolved from the dominant party in the General Assembly ramming their preferred candidates through to the bench, there have been few broad reforms to the process, and it remains largely the same system as it was following the Reconstruction era.
A shifting political landscape in 1995 yielded the first administrative changes to the system, which sprung from a 20-20 split in the Senate between Democrats and Republicans. Instead of the majority party picking judges in closed-door caucuses, the divided assembly gave rise to a form of senatorial courtesy, which shifted the authority of nominating judicial candidates to local legislative delegations.
According to Senate rules, each lawmaker that represents part of a judicial circuit must sign a nominating form for a candidate, who would then automatically be placed on that chamber’s judicial appointment bill. If one senator withholds support, as one lawmaker did this session, the nomination is opened up to a floor vote – which would generally hew to the position of the senator whose party is dominant.
Scott White raises concerns about the propriety of the Assembly, which is made up of a lot of attorneys, choosing the judges that they and their fellow attorneys appear before:
One of my biggest concerns over the process we use to appoint and place our judges has in fact been that it is the General Assembly that does it.
A large part of our legislative body is made of of lawyers who have active practices in the districts they represent.
(…)
So what we have are legislators who are appointing judges and writing the laws that those judges are going to hold people’s actions against. And if that isn’t enough, those same lawyers are the ones who are going to be defending clients against the very laws they wrote and in front of the judges they appointed.
I strongly favor Virginia’s current system of the General Assembly electing judges. I do not think it would be a good idea to allow judges to be popularly elected as it would inject judges into the public political process. I don’t think judges should be running public campaigns while in office. It wouldn’t be good for a judge to run a campaign by putting up signs with the likes of ”tough on crime” and other slogans as this could be a potential conflict with their duties.
And Kilo agrees:
While the process is not perfect, it is the best way to seat the bench. The process is not much different than the feds use. Many of us have seen first hand in Kentucky what happens when judges are elected by popular vote. That process makes you wonder what candidate is supported by drug dealers, pot growers, contractors, etc. Think about it.
If you want another example of what can go wrong when the judiciary succumbs to the electoral process, you don’t need to look much further than the Supreme Court of Alabama and Former Chief Judge Roy Moore, who (regardless of the merits of his views) acted more like a politician on the bench than a Judge.
There are ways to improve the current system but instituting the types of merit-based reviews that are currently performed for candidates for the Supreme Court and Court of Appeals as well as judicial appointments arising in certain jurisdictions such as Fairfax and Prince William Counties, but that’s as far as I think we should go.
If you think there’s a conflict of interest now, what do you think would happen if Judges were soliciting campaign contributions from the very lawyers who appear before them ?
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