But first, some background is in order. Under the Virginia Constitution, the power to elect judges is the purview of the General Assembly. Only when the General Assembly is not in session does the Governor have the ability to make appointments to the bench, but that power is only temporary. The term of any such appointment lasts only “until thirty days after the commencement of the next session of the General Assembly.” In other words, the General Assembly still must elect the judge according to normal procedures.
Back in April (just after the General Assembly session had wrapped up), Justice LeRoy F. Millette Jr. announced his retirement. No one in Richmond believes the timing was a coincidence: he waited until the legislative recess so that Governor McAuliffe could take the lead in appointing his successor. In fact, this was just the way in which Millette himself was appointed to the Court back in 2008 by then Governor Tim Kaine.
By custom, the Governor’s appointments are allowed to stand. In fact, according to House of Delegates Clerk Paul Nardo, 1900 was the last year in which the General Assembly refused to go along with a Governor’s recess appointment to the Supreme Court. Until today.
You see, in the past when the Governor wanted the legislature to give him his appointment, he generally took the time to make sure members of the General Assembly were on board with his choice first. Not this time. McAuliffe’s pick for the Court is from Fairfax, and had the backing of 13 Fairfax legislators (including just one Republican, Del. Dave Albo). McAuliffe said with an apparently straight face today that he thought Albo was acting with the authority of Speaker Bill Howell, and that because of Albo’s support, he thought he did have buy-in on his appointment from the Republicans.
Folks, our Governor either has a severe deficit of communications and political skills, or he’s straight up lying. Your choice.
Speaker Howell and Senate Majority Leader Tommy Norment disabused McAuliffe of this notion today, one week after McAuliffe appointed Fairfax Circuit Court Judge Jane Roush to the seat. The Republican leaders announced a consensus among their respective caucuses behind Court of Appeals Judge Rossie Alston, who they plan to elect later this month.
As we’ve reported previously, McAuliffe has already called a special session the Republicans don’t want, scheduled to begin two weeks from today. Now, at that special session the Republicans are going to give McAuliffe a conservative justice he doesn’t want.
So, because McAuliffe’s pick is a woman, you can predict the kneejerk response, right?
“This woman is highly qualified, and I gotta tell you it doesn’t send a good message to women around the commonwealth of Virginia,” McAuliffe said about the GOP decision not to back his appointment of former Fairfax Circuit Court judge Jane Marum Roush.
“This is the same group of individuals who have tried to roll back women’s rights and tried to hurt women’s rights in the commonwealth of Virginia,” McAuliffe said.
McAuliffe’s press office responded to Norment and Howell’s announcement Monday morning, saying the “purely political” decision was “without precedent in Virginia history,” because it will remove a sitting Justice. The Democratic Party of Virginia, Lt. Gov. Ralph Northam and Attorney General Mark Herring also weighed in, incensed by the maneuver.
“Takes partisanship to a new low,” Herring said in his statement.
“Reflects a lack of leadership from the Republican caucus and calls into question the motives behind this unprecedented move,” Northam said in his.
The Democratic Party noted that the GOP will take a woman off the bench in favor of a man.
Wow. So Republicans did this because they’re sexist? GOOD ONE! And original, too!
Does that mean Virginia Democrats are racist for opposing the election of someone endorsed by the predominantly black Old Dominion Bar Association with their highest praise (“Highly Qualified and Recommended”)? Strange, but nowhere in the coverage of the vicious identity politics attacks from Democrats did the press reports I saw make any mention of that part. I guess it only matters if you’re not a conservative.
Bottom line for Terry McAuliffe is that he’s not very good at this game, and a year-and-a-half in office hasn’t made him any better. Was this power politics? Yep, in a pure form. Was it an expression of displeasure over process and the way the Governor handled his appointment? Almost certainly so, but it was the hamfisted, amateurish way the Governor handled this that gave conservatives the ability to part from custom and get the appointment they wanted.
Checks and balances.