One of the most important responsibilities of the General Assembly is the election of judges. After all, judges represent the Commonwealth and the whole notion of justice in the court and the community. People need to know that they are going to have an equal shot at justice in every court. I came down here this year with a couple of priorities with respect to judges. 

  1. First, I wanted to reform the way judges are appointed. My concern over the years is that the process is too political. Whether Democrats or Republicans are in charge, partisan or even geographical considerations seem to hold more sway than merit. The bill I carried to institute a new merit based system failed.
  2. Second, I wanted to make sure we could maintain the fourth general district court judgeship in the 25th Circuit. This is the judgeship that serves the Counties of Alleghany, Bath, and Highland. That judgeship was scheduled to be lost because of declining population and caseload, so a bill had to be introduced this year. Fortunately, we were able to pair with a need for a juvenile court judgeship in Fairfax County. That bill was amended to take effect in 2018, so when Judge Mooney retires, we will lose that judgeship at least temporarily.
  3. My third priority was to fund a circuit court judgeship in the 16th Circuit, which serves Albemarle and Charlottesville. Anyone who reads the paper knows that the high profile criminal cases in the area have increased the burden on the court system. In fact, two years ago the General Assembly recognized this and allotted a new judgeship. The position, however, has not been funded. My attempt to secure funding for this judgeship was unsuccessful.

When I was in the House of Delegates, I served on the Courts of Justice Committee, which is tasked with screening judicial applicants. I served briefly on the Senate Courts of Justice Committee when the Democrats controlled the Senate. This year, I was reappointed to this Committee after a six year absence. The Committee heard from the candidates put forth by the majority party on Tuesday of this week. At the interviews of judicial candidates, three things became obvious to me. First, the majority is primarily considering the appointment of prosecutors to the bench. This makes sense for a couple of reasons. The Republican majority wants to get the most conservative viewpoint with respect to the criminal justice system on the bench. But we also have disincentivized judgeships. In the old days, the state awarded three and half years of retirement for every year of service on the bench. This created an incentive for lawyers with good practices to give up their work for a steady paycheck with guaranteed retirement benefits. That experience gave us a judiciary that was one of the best in the country. Now the state awards one and half years for every year on the bench. So the bulk of people who are interested in becoming judges are those who have previous credit in the Virginia Retirement System. In other words, by reducing the retirement benefit, we have limited the pool of available judges to prosecutors.

The second thing I noticed, and a corollary to the first, is that the judicial applicant pool was younger. In my view, a judge should come from a well-balanced practice with at least twenty years of experience practicing law. A judicial candidate needs to have tried all kinds of cases and have the temperament and intellect to handle the bench. The candidates we interviewed were by and large younger than what used to be the case, in addition to primarily being prosecutors.

My third observation in reviewing the applications of the candidates is that there were more people who had been charged with a crime in their youth. One candidate had been convicted of a DUI and had been charged a second time. Another candidate had been charged with a more serious felony, although he was not convicted. I couldn’t help but think of a couple of guys I served with in the House of Delegates. One of them, an Old Testament conservative from Southwest Virginia, would question and frown at any applicant who had even a bar complaint. I wondered what he would have thought about the pool we interviewed this year. Another former delegate would always ask the question “Will you make more money or less as a judge?” during these proceedings. There weren’t more than one or two of this year’s candidates who would take a pay cut by becoming a judge.

I was admitted to practice law in 1984. Being on the bench was the pinnacle of the practice. I have always had high ideals for those who occupy the bench. I was not only disappointed in this pool. I was astounded.

In the meantime, the House of Delegates is circling the wagons around a district court judge they appointed within the past two years who has faced a number of complaints from clerks in his judicial district. The circumstances were so bad that the clerks are refusing to work with him. These complaints have been investigated, and the Supreme Court has sent him to another district and requires him to meet with employees using a “buddy system.”

At the same time, the majority seems intent on removing from the Supreme Court a qualified jurist that the Governor has appointed. They are taking her off the court for no reason other than hurt feelings over not being notified by the Governor in advance of the appointment. No Supreme Court justice in the last hundred years has had to endure what Justice Jane Roush is presently dealing with.

And the proverbial cherry on top was the nomination yesterday of former state senator and attorney general Ken Cuccinelli for the Supreme Court of Virginia. This judicial appointment would clear the field for another Republican to run for Governor. Mr. Cuccinelli’s tenure in the AG’s office was marked by hyper-partisanship, and I feel it would be dangerous to put such an outspoken and divisive figure on the highest court in Virginia. He would be the most activist Supreme Court jurist in our history. I voted against the action yesterday in the Courts of Justice Committee and will continue to do so.

Virginians deserve better.