The 2015 Special Session of the General Assembly was over before it began. The Governor called the legislature into a Special Session to begin on August 17 to respond to a federal ruling on the 3rd Congressional District. Specifically, the court, sitting in the Eastern District of Virginia, found that the 3rd Congressional District constituted unfair “packing” of African American voters thereby minimizing the influence of African American voters in surrounding districts. Theoretically, the flaw in the current redistricting plan which the court identified could be fixed by simply readjusting the lines of the 3rd Congressional District with the surrounding districts. But a simple redistricting session did not occur.
The session was complicated this summer by the retirement of Supreme Court Justice Leroy Millette. The Constitution calls for the Governor to fill vacancies in courts of record, including the Supreme Court, that occur while the General Assembly is not in session. Otherwise, the General Assembly has the sole authority to elect judges. Gubernatorial interim appointments are subject to General Assembly approval.
Governor McAuliffe appointed Judge Jane Roush of the Fairfax Circuit Court to be the next Supreme Court Justice. Judge Roush presided over the trial of one of the DC snipers, Lee Boyd Malvo. She has been on the bench for 22 years and has a distinguished career. Delegate Dave Albo, the Chair of the House Committee for Courts of Justice, nominated Judge Roush to the Governor. Despite his involvement, some feelings were hurt because the Governor did not call the Speaker of the House or the Senate Republican Leader prior to his announcement on the appointment of Judge Roush. As a result, Republican leaders declared they would not confirm her and would instead elevate Judge Rossie Alston from the Court of Appeals to the Supreme Court. That announcement and the subsequent discussion controlled the Special Session.
It is simply unprecedented for a Governor’s pick to the Supreme Court not to be confirmed. Democratic governors have had all of their picks confirmed; Republican governors have received the same courtesy. Justice Roush, who had already resigned from the Fairfax Circuit Court in anticipation of her movement to the Supreme Court and had already been on the job for three weeks, was left in a lurch. The embarrassment continued when the House and Senate Republicans refused to even allow Justice Roush, by now an incumbent member of the Supreme Court, to be interviewed by the Courts of Justice Committees. So while ostensibly, the Special Session was called to address Congressional redistricting, it was clear the Supreme Court appointment was going to dominate discussion.
After the interview of Judge Alston and the refusal to hear from Justice Roush, the House and Senate Committees for Courts of Justice advanced the name of Judge Alston. Judicial elections simply require a majority vote of the members elected to each chamber. Judge Alston easily had the votes in the House, so the Supreme Court appointment came down to the Senate.
Sen. John Watkins of Powhatan County rose slowly to address the judicial nominations. Sen. Watkins, a pragmatic businessman, and a Republican who has been in the General Assembly since the mid-80s expressed his grave concern for the dysfunction of the judicial selection process in this case and for the precedent that would be set by denying Justice Roush her seat on the Supreme Court. Sen. Watkins joined with the 19 Democrats in the Senate to deny the election of Judge Alston to the Supreme Court.
Justice Roush and Judge Alston are both highly respected and qualified to serve in the Commonwealth’s highest court. This entire process was a disservice to both. Two other lower court appointments were confirmed.
Once the dust had settled on judicial appointments, we were able to get back to the business of addressing the court decision on the 3rd Congressional District. It was clear to everyone that the Republican majorities in the House and Senate were not going to agree on a redistricting plan that Governor McAuliffe would sign. I doubt that any member of the House or the Senate was optimistic that Democrats and Republicans could agree to a map. Cynically, the Republican majority had not introduced a single plan while Democrats had introduced two separate modification plans. To amplify that cynicism, the leadership of the House had already determined to recess the Special Session on the 17th and return to pass a redistricting plan on the 31st of August. Since the court had mandated that the Congressional Districts be redrawn by September 1, the planned House action would give the Governor, who under the Constitution has the right to sign, amend or veto the bill, no time to respond before the court stepped in. In light of that, it did not make sense to continue the charade of a redistricting Special Session. Therefore, the Senate Democrats, again joined by Sen. Watkins, adjourned the Special Session.
To add to the confusion, both the Speaker of the House and Sen. Norment claimed that the adjournment was unconstitutional and that the Legislature was still in session. They point to language in the state Constitution which clearly says that neither house can adjourn for more than three days without the consent of the other. However, they ignored the Rules that state an adjournment sine die is in order at any time. Nor did they refer to the precedent. When Democrats controlled the State Senate in 1992, they adjourned sine die without the consent of the House. In 2002, both the House and Senate were controlled by Republicans. That year the Republicans in the House adjourned sine die without consent of the Senate. So clearly what happened this year was not new.
So what happens next? That is a really good question. Regarding the Supreme Court, Justice Roush will lose her seat in 30 days since she was not confirmed by the legislature. The Governor likely will reappoint her to serve until January when once again the General Assembly will have an opportunity to confirm her.
With respect to redistricting, it appears likely that the federal courts will redraw the districts. Whether they use the opportunity to redraw all 11 districts or perform smaller fixes on the 3rd District and surrounding districts remains to be seen. One can always be hopeful there will be an end to the partisan sniping that has crept from Washington DC and nests comfortably now in Richmond. If not, we can expect the courts to draw the districts.
It continues to be my honor to serve you in the Senate of Virginia. Do not hesitate to contact me if I may be of service. If you have questions, do not hesitate to contact me. I can be reached at my legislative office in Charlottesville at 434-296-5491 or PO Box 5462; Charlottesville, VA 22905 or in Hot Springs at 540-839-2473. Or you can reach me by email at [email protected].