VCC Magazine Fall-Winter 20-21

V irginia C apitol C onnections , F all 2020/W inter 2021 4 One of the great pleasures of the work that I do is to interview people like The Honorable Cynthia D. Kinser in the fall of 2014. She was the first female chief justice of Virginia’s Supreme Court. I thought about Kinser a lot, as I watched every minute of the hearings for Amy Coney Barrett, then nominee, now official, U.S. Supreme Court Justice. We talked for an hour or so in the Speaker’s Conference Room. I was impressed by her humility and her expertise. I remember one brief moment in particular. She spoke of the heavy responsibility of following the law, regardless of the judge’s personal preferences. If it were otherwise, we could all skip the study of the law, and we could all be “armchair judges.” “Right,” I nodded. “It’s not as if the law is a referendum.” We looked at each other in complete knowing, complete understanding. Worthy or not, it was a point bitterly debated in Barrett’s nomination hearings. Such lofty thoughts were batted around repeatedly the past month, a month that produced arguments from all sides. It was, and is, an historical time. Now that our attention is directed to the bar and the bench, Virginia Capitol Connections Quarterly Magazine has asked various voices (both partisan and neutral) from the Commonwealth to offer their thoughts on how things are done here in Virginia. Are we doing it right? Are we doing it wrong? Our state goes by different rules from the United States Constitution.We have our ownVirginia Constitution which governs the process, from selection to terms of office. If we are to draw one conclusion from these viewpoints, even if we disagree on some specifics, whether you are alarmed or relieved about the court system, it is that our state Constitution, our goal of separation of powers, and our rule of law, is a value to be cherished. Bonnie Atwood, J.D., is a 1996 graduate of the T.C. Williams School of Law at the University of Richmond. She is also editor of Virginia Capitol Connections Quarterly Magazine. Wearing the Black Robe: What it means in Virginia By Bonnie Atwood, J.D. V Reform Needed But Unlikely By Richard J. Meagher While recent national politics have highlighted the importance of the federal judiciary, our often overlooked state court systems are just as important, if not more so. By some counts, almost 99% of the country’s cases are filed in state-run courts. Yet few citizens pay attention to their operation, or how we select their most important actors: judges. Here in Virginia, we have chosen what is probably the worst possible method of judicial selection, so we are badly in need of reform. Unfortunately, there is likely no political will to do so. First, I should note that there is a fundamental challenge for judicial selection, one that is difficult to resolve: the question of independence vs. accountability. On the one hand, we want our judges to be fully independent, and able to make decisions from the bench that are not unduly influenced by political considerations. Objective rulings from the bench become more difficult if judges are dependent on politicians for re-appointment, or on the public for donations and votes. The federal judiciary addresses this problem by awarding lifetime tenure, with appointment power shared among the legislative and executive branches. Still, the other side of the coin is also important: democratic accountability. Judges are humans, not gods, and are political officials just like any other; the will of the people is supposed to matter in choosing our decision-makers, even for the bench. Lifetime appointments ensure a perhaps overly conservative judiciary that can fall out of step with the public. Some form of reappointment or election allows for the people to have a voice in this vital government function. In fact, many states have sided with accountability, asking judges to win elections in order to serve through a variety of mechanisms. NewYork, for example, has a complicated system of partisan primaries where Supreme Court candidates are chosen by party convention delegates, and lower court candidates are chosen through more traditional primary elections. Other states, like nearby West Virginia, have tried non-partisan elections in an effort to insulate judicial selection from partisan concerns. Still, judicial elections have sometimes grown to be big-dollar, nasty affairs, with the same attack ads and outside influences we see in elections for other offices. Even candidates in non-partisan elections are subject to vicious personal attacks, while the lack of partisan labels leave uninformed voters with little idea of who to support. Virginia has chosen to address these fundamental problems through an unusual method: legislative election. Judges are appointed when approved by a vote of the General Assembly, with these votes heavily influenced by the relative committees and delegations from the jurisdiction. Virginia is one of only two states that selects judges in this way; South Carolina is the other, but in that state, candidates are pre- screened by a Judicial Merit Selection Commission. Legislative selection takes the accountability vs. independence dilemma by the horns, and then fully impales itself on both of them. “Independent” Judges owe their loyalty to the General Assembly and often are former legislators or their relatives. As for democracy, the public is essentially cut out of the process; sure, they vote for the legislators but are very unlikely to prioritize judicial election votes instead of other factors when choosing candidates for office. There are better options. For example, a number of states have experimented with a “merit plan” or “assisted appointment” method. In these states, candidates are short-listed by an independent panel and then appointed by the governor, often with approval by the legislature. After an initial term, judges face a retention election, in which the public approves them for additional terms. The merit plan suffers from some of the same problems as other methods, including low-turnout elections where voters have little knowledge or familiarity with judicial merit. And in these retention elections, judges can be subject to the same nasty attack ads. Still, supporters argue that special and partisan interests are less likely to try to unseat a sitting judge for political reasons if the incumbent will just be replaced by another merit appointment. And while democratic accountability is still not very strong on this method, a combination of appointment and elections is more likely to strike a balance between independence and the will of the people. Still, despite these better options, Virginia is unlikely to see much movement on this issue, even with a reform-minded Democratic majority in control of the General Assembly. Institutional reform is exceedingly difficult, as witnessed recently by the watering down of redistricting reform in a flawed constitutional amendment. Politicians are loathed to give up power of any kind. Legislative selection combines control over another branch of government with the ability to dole out powerful, high-paying patronage appointments. Don’t expect change any time soon. Richard J. Meagher is an Associate Professor of Political Science at Randolph-Macon College. He blogs about Virginia state and local politics at RVA Politics (rvapol.com) , and is the author of Local Politics Matters (Lantern, 2020). V