RICHMOND, Virginia – Republican legislators say that Democrats are leaving them out of the process of vetting candidates to fill eight Virginia Court of Appeals seats. Next week, legislators are expected to appoint judges to the newly-expanded court. But Democrats privately interviewed the candidates on Wednesday and only intend to advance eight candidates to be approved by the General Assembly, as first reported by The Virginia Mercury and The Richmond Times-Dispatch. On Thursday, Republican and Democratic senators went back-and-forth on the Senate floor about the process.
“I am confident that there were no Republicans who were invited to participate in those interviews and I just want to point out that it seems to be a little bit of a theme that has developed during the course of this session,” Senator Mark Obenshain (R-Rockingham) said. “There is way too much business that’s being conducted behind closed doors, out of the view of the public.”
Earlier in 2021, the General Assembly added six seats to the court; there are also two vacancies to fill. When the General Assembly added the seats, Democrats said that would provide all Virginians with an automatic right of appeal. Virginia is the only state that does not have the right, and the court did not have the manpower to handle the extra burden. But Republicans called it court-packing; GOP attorney general nominee Delegate Jason Miyares (R-Virginia Beach) said in February that “liberals in Richmond are trying to manipulate the courts.”
On Thursday, Obenshain said that when he and other Republicans controlled the Senate, they had allowed Democrats to be part of discussions about appellate court appointees. He said he recognizes that Democrats have control and can appoint who they like.
“What I’m concerned about, and I think that people of Virginia ought to be concerned about, is not who’s consulted about who’s going to be selected, who’s outvoted, who has the weight to be able to select these members, but what is taking place behind closed doors,” Obenshain said.
“I’ve been around a day or two in this body,” Senator Chap Petersen (D-Fairfax) said. “I’ve been around when Republicans selected judges, I’ve been around when Democrats selected judges, I’ve been around when Don McEachin selected judges, okay. The bottom line is, folks in power, they usually drive this process, and I’ve never seen it any other way.”
Senator Scott Surovell (D-Fairfax) said, “I don’t remember a single time, in 12 years, that anybody’s ever asked me my opinion of what I think about who [nominees] are when we were in the minority.”
“The time we found out who the nominee was, was when it was announced during the course of the Joint Courts of Justice certification,” he said. “Unlike how things were done before, one of the things the chairs of the judiciary and justice selected to do this year was to solicit input from the public. And we went to the bar associations, and asked them to vet candidates for us, which I don’t think has been done in over a decade, and in response to that 82 people submitted their names to be vetted. Some of those names have been public for over two years. In response to that vetting, we received I think 2,300 pages of material, something like five gigabytes of material provided by the bar associations.”
Surovell said the bar associations would provide that material to anybody in the Senate, and that any legislators could call the candidates and interview them. “That public vetting process is way more transparent than anything that’s happened here in the last ten or fifteen years,” he said.
Senate Minority Leader Thomas Norment, Jr. (R-James City) asked if Republicans could propose any candidates to be certified. Surovell said yes.
Senator Joe Morrissey (D-Richmond) criticized the Democrats’ process. Morrissey recalled when he was in the House of Delegates, and then-State Senator now-Congressman Don McEachin (D-Virginia-04) would ask Morrissey his opinion about proposed judges.
“It didn’t matter what I thought,” Morrissey said. “The decision was made. I think it’s imperative that we have a judicial vetting that you bring all of the parties together, you let them sit down, and at the very least, you let them ask questions.”
Morrissey said, “There just may be a superior candidate who the minority party puts forth that has terrific credentials, but I’m wondering how that person gets vetted on Tuesday before Senate Judiciary when we’re leaving on Wednesday?”
Senator Bill Stanley (R-Franklin) cast doubt on the vetting process. “I don’t trust the State Bar,” he said. ” I don’t think they are the be-all and end-all to determine who has the ability to sit on the appellate court.”
Stanley argued that the vetting process was something the legislature should handle.
He said, “This is what I kind of see is happening: we’re setting precedents we can never come back from.”
Senate Majority Leader Richard Saslaw (D-Fairfax) said, “Generally speaking, and this applies almost all the time to both parties, the party that’s in the majority has never asked the party that’s in the minority, ‘Who’s your choice’ for the Court of Appeals, or the Supreme Court, or anything else.”