Governor McAuliffe has announced his unilateral reappointment of Justice Jane Marum Roush to the Virginia Supreme Court.
The Virginia Constitution explicitly states that during a legislative session, only the General Assembly can elect a justice to the Court. The Governor has the power to make a temporary interim appointment, but this automatically expires 30 days after the start of a General Assembly session.
Back on August 17, the House and Senate convened to take up redistricting legislation and the Supreme Court vacancy. However, when it became clear that the House and Senate Republicans were prepared to elect someone else to the Court, McAuliffe’s allies in the Senate (joined by one Republican) abruptly voted for a motion to adjourn and went home.
It is significant that the House did NOT join this vote. Again, the Constitution clearly states what happens: “Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.” In short, the Senate cannot by itself end the session. And no adjournment should mean no interim appointments.
Nonetheless, on September 16, McAuliffe (re)appointed Roush to the Supreme Court.
Our initial research has found no Virginia Governor who has attempted such a maneuver. Moreover, because of these Constitutional concerns, any work that Justice Roush performs while on the Court may be subject to additional legal challenges. Although Attorney General Mark Herring is Virginia’s lawyer, he has predictably raised no issues about the appointment, and McAuliffe himself has belittled such Constitutional questions as unimportant “small ball.”
(Note that in an effort to resolve this issue, the Assembly was even willing to re-elect Justice Roush to her old job, but she rejected this, saying it was “too far down the road” for that.)
The General Assembly can take up the disputed Supreme Court seat when we reconvene in January.