Democrats are gloating over having frustrated GOP aims on Monday. But have they “won” anything?
No. Other than the amusement at Republicans being blindsided by the betrayal of Sen. John Watkins (R-Powhatan), Democrats won nothing more than delaying the inevitable.
With Watkins’ help, Senate Democrats were able to shoot down the election of African-American Judge Rossie Alston to the Virginia Supreme Court. Also with Watkins’ help, Senate Democrats unlawfully attempted to adjourn their special session “sine die.”
This attempted adjournment has two purposes. First, absenting the Senate makes it impossible for the Republican-controlled General Assembly to pass the court-ordered redistricting plan for the Third Congressional District. As we detailed yesterday, this has some benefit for the Democrats by blocking Republicans’ ability to put a redistricting plan before the court that has the legislative branch’s seal of approval, thus marginally increasing the chances that the court will take the opportunity to do a more fundamental revamping of all of Virginia’s congressional districts. There is very little precedent for such judicial activism (and it is unlikely to come from three Republican-appointed judges), but it is clearly something the Governor wants to see.
Second, and probably more central to the partisan spat, if the special session is adjourned the Governor can make recess appointments (i.e., he can give Justice Jane Roush another appointment to the Supreme Court when her interim appointment expires next month).
But the Democrats really didn’t think that part through. Not only is it unlawful for the Senate to attempt adjournment on its own, as we wrote yesterday, but it would also be unlawful for the House of Delegates to adjourn without consent of the Senate. That consent cannot be had when the Senate refuses to meet. As Republican leaders said on Monday, “The House of Delegates remains in session, pursuant to Article IV, Section 6 of the Constitution of Virginia.”
So, if Governor McAuliffe attempts a recess appointment without a legitimate adjournment of the special session, and with at least the House still in session and literally unable to adjourn, this could turn into a constitutional crisis. Imagine the legislature going to the Supreme Court to get the Court to decide a dispute about Constitutional requirements for legislative procedures with direct implications for who gets to sit on that same Court. Not a pretty picture.
How can this be avoided? One option would be for Republican members of the Senate gather tomorrow (the third day after the attempted sine die adjournment) and declare Monday’s attempted adjournment to be null and void as unconstitutional. This could open the way for a more aggressive option found in Article VI, Section 8 of the Virginia Constitution:
“A majority of the members elected to each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and shall have power to compel the attendance of members in such manner and under such penalty as each house may prescribe.”
(Emphasis added). No one relishes this kind of approach, but neither are Republicans in the mood to simply lay back and allow the Governor to break the law in a way that directly impinges the legislature’s prerogative.
The manner in which the Democrats have comported themselves on this–from McAuliffe’s arrogant failure to consult with GOP leaders on his recess appointment of Judge Roush, to the soliciting of betrayal from certain Senate Republicans, to the ham-fisted pseudo-adjournment on Monday–has hardened GOP resolve to oppose election of Jane Roush to a full term on the Supreme Court. This resolve was bolstered by Judge Rossie Alston, the GOP’s preferred candidate, who impressed everyone during his hearing, including some Democrats who are otherwise reluctant to break from McAuliffe. Whether Republicans can act on this in the short term, or whether it waits until January remains an open question.
The next few days will be interesting, but no matter how things unfold, one thing seems certain. Jane Roush is destined for a very short career on the Virginia Supreme Court.