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Thorny politics get in the way of filling Virginia Supreme Court vacancies

Building with columns on second floor
The Supreme Court of Virginia's building in downtown Richmond. (Photo: Alex Scribner/VPM News)

This story was produced with assistance from the Public Media Journalists Association Editor Corps funded by the Corporation for Public Broadcasting, a private corporation funded by the American people. 

State lawmakers have another chance to fill two Virginia Supreme Court seats during a special session beginning this week - unless their politics get in the way. 

The Supreme Court is made up of seven justices elected by a majority vote of each house of the General Assembly to twelve-year terms. Two seats opened recently after Justice William C. Mims and Chief Justice Donald W. Lemons announced their retirements. 

Selecting judges in Virginia is a constitutional duty that involves high-stakes political wrangling - it’s made worse this year by a divided legislature as members of both parties blame the other for refusing to negotiate. 

If the Democrat-led Senate and Republican-controlled House can’t agree on judges during the special session, Gov. Glenn Youngkin will pick them himself.

University of Richmond law professor Carl Tobias says that leaves little incentive for the GOP to negotiate. 

“The Republicans are perfectly willing to let it slide and let the governor make the appointment and then see what happens,” he says. 

If lawmakers adjourn and punt the decision to Youngkin, the governor’s picks would serve eight months on the bench, but would still have to be confirmed by the legislature during the next session in January. Former Democratic Gov. Terry McAuliffe used the tactic to appoint Jane Marum Roush to the bench in 2015. Republicans, who controlled both houses of the legislature at the time, said they hadn’t been properly consulted and replaced Judge Roush in favor of  Judge Stephen McCullough in 2016.

Democratic leaders in the Senate tell VPM they don’t intend to give Youngkin the power to make interim picks. 

“If the idea is to leave it up to the governor, we’re going to object to that,” said Sen. John Edwards (D-Roanoke), who co-chairs the Senate Judiciary Committee. “If we stay in session through the end of the year, he can’t do it.” 

Edwards suggested the governor should help broker a deal instead.

“If he knows what he’s doing, if he had any experience in government, which he does not, he would sit down and roll up his sleeves and start talking to people,” Edwards said. “Because we do have a Senate that is controlled by the Democrats, and I don’t think you can get anything done without the Democrats.” 

The problem is that this fight is bigger, and messier, than those two vacancies alone. 

Republicans and Democrats disagree on how to fill a number of critical posts. 

In the final days of the session this year, Senate Democrats rejected most of Youngkin’s picks for the 5–member Parole Board, and they blocked his choice for secretary of natural and historic resources, Andrew Wheeler. House Republicans prevented the reappointment of Angela Navarro, Gov. Ralph Northam’s pick, to the 3-member State Corporation Commission. They also voted down 11 of Northam’s picks to key state boards, including the Virginia Board of Education. 

Republicans are also still feeling tender after Democrats expanded the court of appeals last year and appointed eight new judges, largely behind closed doors. 

The fact that several of those appeals-court judges are frontrunners for the Supreme Court nominations complicates things further. 

“There are a number of balls in the air,” said Sen. Creigh Deeds (D-Bath), co-chair of the Senate Judiciary Committee. “We’re still talking and hopefully we’re going to work something out. But the reality is no one party is going to get to do all the picking themselves.”