Sunday, December 13, 2009

Judge Pickin' Time in Fairfax

Judge selection is a fundamental prerogative of the Virginia Legislature. It is also very important. Over a million people travel through the Fairfax County Courthouse every year alone. Judges mediate disputes regarding right and wrong, life and death, and decide matters are personal as where a child should live or have a guardian appointed to manage their affairs. Selecting high quality individuals with the right mix of knowledge, skill, temperament, and judgment is critically important to ensure that mistakes are avoided, citizens feel like they had a fair hearing, and most importantly - that the right result was reached.

Unless you are a Virginia attorney, you are probably not very familiar with how someone becomes a judge in Virginia. It is actually fairly unique as things go in the United States. Only two states in the United States give the legislature final authority on judges - Virginia & South Carolina. The American Judicature has some interesting summary information on Virginia's process. Some states have partisan or non-partisan elections, independent commissions, nomination and confirmation, or combinations. This article summarizes systems across the U.S and here is a table. While Virginia's process suffers from flaws, my impression is that in general, it works pretty well (at least in Fairfax County).

Virginia's judges are elected by the General Assembly. Appellate judges - The Supreme Court of Virginia, the Court of Appeals, and the State Corporation Commission Judges - are picked by the entire House & Senate. Local judges - Circuit Court, General District Court, and Juvenile & Domestic Relations District Courts - are technically picked by the entire House and Senate, but the majority parties defer to their local delegations on local choices. The various bar associations typically vet and review the candidates. In Fairfax there are five bar associations that review candidates (Fairfax Bar Association, Women, African-American, Asian and Hispanic Bar Associations) and the Fairfax Bar Association has an endorsement election. If the Assembly cannot or does not act, the Governor can appoint an individual until the next General Assembly session.

Fairfax County also has a unique bipartisan system that was created in the 1980's by former Mount Vernon State Senator Joe Gartlan. In most jurisdictions, the delegates from the majority party in each chamber select (Republicans in the House and Democrats in the Senate). In Fairfax County, the entire House and Senate delegation meet as a group, consider the local bar reviews, Fairfax Bar Association election results, input from constituents and others, and interview the candidates. We vote as a group (one elected, one vote) and whoever gets the majority of votes, gets the recommendation. After the Republicans took control of the legislature in 1999, the Republicans continued this system in Fairfax in deference to the old system and the Democrats giving them a role in the process when they were in the minority.

On Monday night, we are selecting three new judges for the Fairfax County Circuit Court. This important for a number of reasons. The Circuit Court is the highest Court in Fairfax County hearing disputes ranging from $5,000 to $500,000,000, speeding tickets to capital murder, and from the administration of estates to issuing permanent injunctions. If a judge makes a mistake, the consequences can be enormous. Also, Fairfax County only has fifteen Circuit Court judges - Monday night we are appointing 1/5th of them.

What criteria am I using? The American Juridicature Society has a Chapter on suggested criteria. About a month ago, I was fortunate to meet Justice Ruth Bader Ginsberg after one of my new constituents, an old friend from JMU Jim Scott, invited me to a reception at the U.S. Supreme Court. I actually asked her what criteria I should use. She said I should pick someone who was:
(1) Intelligent;
(2) Knew how to listen;
(3) Can speak and communicate well; and
(4) Has an appreciation of the real life consequences of their decisions.
Having practiced law at all levels of Virginia's Courts for 13 years, I would also say that possessing an even-keeled temperament is critical. Courtrooms can become very passionate environments and having someone who can keep a lid on things without also taking people's heads off every time is essential.

If you have any input for me on the current candidates, please send it along to my official email address at I will post the results here on Tuesday morning.

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