There’s just one person to blame for the nonsense going on down in Richmond right now, and his name is Terry McAuliffe.
To understand what’s going on in Richmond with the controversy surrounding the recess appointment of Fairfax Circuit Judge Jane Roush to the Virginia Supreme Court, let’s start at the very beginning.
In August 2008, Virginia Court of Appeals Judge LeRoy Millette was appointed to the Virginia Supreme Court by Governor Tim Kaine. Judge Millette was subsequently elected to a 12 year term on the Virginia Supreme Court in February 2009. That term would have expired in February of 2021. Judge Milette chose to retire early, however, announcing his decision in April. His excuse? The age old “wants to spend more time with his family” excuse that almost every retiring public official trots out. Why Judge Millette chose this timing is pure speculation – there appeared to be no exigent circumstances surrounding his retirement like health, family issues, or the like – but given he was appointed twice by Democratic governors, it’s not outside the realm of reason that he chose to retire when he did to give Governor McAuliffe an upper hand in replacing him with another Democratic appointee.
If that’s where it ended, this wouldn’t really be that big an issue. But the timing here is extremely suspect.
Here’s where it gets interesting – Virginia’s Congressional lines were struck down last October. In February, the District Court gave the General Assembly until September 1 to redraw the lines, making an August Special Session of the General Assembly likely. Everybody was planning on an August session. The Governor himself called the House and Senate leaders in early July to warn them that an August 17th special session was coming.
It wasn’t until July 21 – less than two weeks before Judge Millette was set to resign, and well after the Governor signaled his intentions for a special session – that the Governor chose to appoint Judge Roush to the Supreme Court through a recess appointment. Why did he go this route?
The Governor knew there was going to be a special session less than a month later. But he made the recess appointment anyway? And he did so without consulting the House or Senate leadership, or allowing the General Assembly time to do the traditional vetting that every judicial candidate receives prior to an appointment.
It’s important to remember that, unlike at the federal level, the Governor has only a minor role to play when it comes to judicial appointments.
In Virginia, unlike in Washington, Supreme Court judges – all judges, in fact – are selected and elected by the General Assembly. Article VI, Sec. 7 reads:
Section 7. Selection and qualification of judges.
The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years. During any vacancy which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the General Assembly. Upon election by the General Assembly, a new justice or judge shall begin service of a full term.
It is fundamentally the decision of the General Assembly as to who gets appointed to courts in Virginia. Given the limited amount of time that the General Assembly is in session, the Governor is granted the ability to make recess appointments when needed. As noted above in the Constitution, those last until the General Assembly can take action. Until this recess appointment, no Virginia governor was foolish enough to make a recess appointment without clearing the decision with House and Senate leaders, knowing that the House and Senate have final say over who gets to serve in these roles.
And I have yet to find an example of a Governor making a recess appointment in the full knowledge that the General Assembly was going to meet shortly and could take up the vacancy through the traditional constitutional process.
This was a power play, pure and simple – the Governor knew what he was doing, and he knew that his actions would be rightly viewed by House and Senate Republicans as a slap in the face and a dare. The General Assembly has never – at least as far as I can find evidence of – refused to elect a recess appointee to a full term. But, then again, no Governor has been so brazen about this as Governor McAuliffe.
That was a huge miscalculation. And the Governor then doubled down on it by allowing DPVA and the Senate Democrats to spin this into more ridiculous claims of a “war on women” that deeply offended General Assembly Republicans, and flies in the face of reality. Every woman on the Court of Appeals or Supreme Court was elected with the support of Republicans in the General Assembly. The House and Senate just elected Judge Mary Grace O’Brien to the Court of Appeals last January, the other two sitting women on the Court of Appeals were elected by the General Assemblies at least partially controlled by Republicans, including one after a recess appointment by Governor McDonnell, both women on the Supreme Court right now were elected by the Republican legislature including the first African American woman to ever serve on the Supreme Court, and the one female Senior Status Supreme Court Justice was recess appointed by Governor Allen.
Delegate Tim Hugo took to the House floor yesterday and eloquently stated the facts here:
The simple solution here would be for Judge Roush to accept either her old job or the Court of Appeals job, but she has apparently refused both.
Regardless of what the Democrats claim, this issue has little to do with Judge Roush or Judge Rossie Alston, the General Assembly’s choice who – unlike Judge Roush – has gone through the full vetting process. It has everything to do with the separation of powers and this Governor’s unwillingness to extend even common courtesy to House and Senate Republican leaders. Instead of doing the right thing by Judge Roush and doing what every other sitting Governor has done, he instead chose to play politics with her job and essentially dared the Speaker and Majority Leader to call his bluff.
Well, they did. And even after Democratic Senator Don McEachin’s cheap tactic yesterday to ram through an adjournment of the Senate, the chances of the next General Assembly caving in on this issue are almost nil.
This is what happens when we elected a Washington-style Democratic political operative Governor of Virginia. Once again, the Potomac Two-Step has replaced the Virginia Way in Richmond. But Speaker Howell and Leader Norment aren’t likely to cave on an issue like this given the Constitutional implications.
Don’t buy the nonsense coming from the Democrats – the only person to blame for this business is Governor McAuliffe.
