Judicial Selection: Gaming the System

Yesterday, something happened that really gave me a headache because it undermines people's trust in government.

One of the functions the Virginia General Assembly serves that gets little attention from the general public but has a significant impact is the selection of judges.  If you need a divorce - they decide where your kids live, who gets property, and how much support is paid.  They decide if people get executed or not.  They rule on all kinds of matters that affect people's lives.  It is critical that we get bright, capable, even-tempered, and experienced people on the bench.  Not simply people who have the best political connections. 

Virginia's system is unique - the General Assembly elects judges.  There are rules in place in case a retirement occurs while we are not in session.  If the vacancy is in Circuit Court or an appellate court, then the Governor can make a recess appointment.  In a General District Court or Juvenile and Domestic Relations District Court position, then the local Circuit Court appoints a replacement.  Appellate and Circuit Court judges are elected to eight year terms.  District Court judges to six year terms.

In Fairfax County, we have a completely bipartisan selection process where every member of our delegation gets one vote no matter how many people they represent.  It was started by Mt. Vernon Senator Joe Gartlan and continued by Delegate Dave Albo after the Republicans took control of the House because he thought it was only fair because it was how he was treated.  It works very well.  In other jurisdictions, the selection process is very political and very contentious. 

When we go back into session, we have the authority to fill the position so most people will not take an appointment if they do not have assurances of reappointment although it has been extremely rare for the legislature to reject a recess appointment because such persons have either shut down their law practice or given up another judge position for the recess position. 

Due to budget issues, in 2010 Session, we enacted budget language that all vacancies were not to be refilled unless authorized by the budget.  There is a feeling that some Circuits have too many judges and others to few, plus we needed to save some money.  In 2010, no judgeships were restored.  In 2011, we filled a few.  This year we filled a few.

The judgeships that got filled were based on looking at "cases filed" (with three small exceptions of Budget Appropriators who filled their pet judgeships).  This is a horrible metric for a bunch of different reasons so this year, plus these decisions are often very political, so we enacted legislation requiring a comprehensive independent study to recommend judgeship allocations.  In the meantime, the main budget continued to carry the language that says no judgeships until we are back negotiating the budget.

Because of this situation, Fairfax County has two empty judgeship and Arlington County has lost two judgeships.  Our cases filed stat doesn't measure up well.  However, our cases tend to be much more complex than cases in the rest of Virginia.  Plus, our cases at 70% civil and 30% criminal due to our low crimes rates.  In the rest of Virginia that proportion is flipped and most criminal cases result in pleas that do not take a large amount of a judge's time.  Hopefully, the new study will fix that.

During our recent veto session, the Governor proposed an amendment stating that if a judge retired between August 1, 2012 and December 1, 2012 and was not subject to retirement before June 30, 2013, that the locality would not lose that position. 

That didn't smell right to me.  The timeframe was wierd.  I argued on the floor that it would allow people to game the system, it would result in jurisdictions being treated differently, and it gave up our constitutional prerogative to select judges to third parties.  Historically, Governor's appointments tend to be more political.  Also, there are many judges who have been delaying retirement for the last three years so that their judgeship will not be deleted and their colleagues dumped with a big pile of cases on top of their existing caseloads.  I was afraid people would "strategically" retire.  My logic was so powerful that two of my 99 other colleaguges listened to me and the amendment passed 93-3.

Today, we found out why it was introduced.  Attorney General Cuccinnelli announced that his deputy was retiring and that a Virginia Beach Circuit Court Judge was retiring to take the empty position.  This means that the Governor will have a recess appointment in his home jurisdiction.

While this is all completely legal, it is exactly this kind of political gamesmanship that causes people to question our motives.  Without this language, Virginia Beach would have to justify their judgeship based upon their cases filed - just like everyone else.  Now, the Governor will fill their position and it will be like this never happened, one of the Governor's friends will go on the bench, and Virginia Beach will not have to justify how to keep their judgeship position like Fairfax County or anyone else.

It's no wonder to me that trust of government is so low.