State Supreme Court vacancies remain unfilled during political standoff

Two vacant seats in the Virginia Supreme Court hang in the balance in the political standoff in the Virginia Assembly. 

State lawmakers said in interviews this week that their negotiations over the justices continue but indicated they are no closer to resolution.

“We do not have an agreement on how to proceed with the Senate,” Del. Rob Bell, R-Albemarle, chair of the House Courts of Justice committee, told the Mercury. Bell declined to comment further on the specifics of the negotiations.

At issue are two of the seven seats in the state Supreme Court. The two seats opened in the last year after Chief Justice Donald Lemons and  Justice William Mims announced their retirements. 

Selecting justices is a constitutional duty of the General Assembly, which elects the justices by a majority vote. Once elected, a justice can serve for a 12-year term. In recent history Republican legislatures have elected justices as a matter of course. But this year, the appointments are one of many political deadlocks in the current divided legislature.

“We’ve been talking about this since January but there are a couple things that get hung up in it,” Sen. Creigh Deeds, D-Bath, co-chair of Senate judiciary committee, told the Mercury.

Deeds said  the “obvious solution” would be to give House Republicans one choice and Senate Democrats another choice. But even if they could agree on those appointments, there are other cascading effects, like if a justice is elevated from the appeals court and has to be replaced. 

“The solutions are within grasp, we are still talking, still being civil with one another, but the discussions continue,” Deeds said.  “And right now I don’t know if there is anything we can do to force the situation ahead.”

Republicans have less incentive to negotiate because if lawmakers adjourn without an agreement, Republican Gov. Glenn Youngkin has authority to put his own judges on the bench without the legislature’s involvement. 

Those justices could serve until the end of the year but would have to be confirmed by the legislature when it reconvenes in January. 

Former Democratic Gov. Terry McAuliffe used that tactic to appoint Jane Marum Roush to the state Supreme Court in 2015. Republicans, who controlled both houses of the legislature at the time, then replaced her with Judge Stephen McCullough in 2016.

Deeds said he hopes his Republican colleagues are not stalling to try to punt the decision to the governor.

“That possibility has crossed my mind more than once, but I am going to give them the benefit of the doubt that they are operating in good faith because we certainly are,” Deeds said. 

‘It is a bad practice’

The state Supreme Court vacancies add to a larger list of conflicts lawmakers have had over appointments this year. In February, Democrats rejected Andrew Wheeler, Youngkin’s pick for secretary of natural and historic resources. Wheeler is a former coal industry lobbyist and was the controversial head of the U.S. Environmental Protection Agency under President Donald Trump.

Republicans in the House of Delegates then fired back by voting down some of Gov. Ralph Northam’s picks for the Virginia Board of Education, who had spent months already serving on the board while they waited for their confirmation. And in March,  Senate Democrats voted to block a normally routine resolution that would have confirmed four of Youngkin’s appointments to the Parole Board and one to the Safety and Health Codes Board

On top of that, Democrats voted last year to expand the number of seats on the state’s Court of Appeals and then appointed eight new judges to the court. Several of those judges are considered frontrunners for the Supreme Court nominations. 

University of Richmond law professor Carl Tobias says the Supreme Court seats should not become a part of the political maneuvers, that lawmakers should have undertaken their constitutional duty to name successors during the regular session earlier this year. 

“It should not be that hard. Democrats get one and Republicans get one and hopefully everybody can vote to elect them and go home. But I don’t think it’s that simple, so we’ll see,” said Tobias

In practice, the state Supreme Court can still function with five justices instead of seven. And since most of the justices are similarly moderate, it does not drastically affect the balance of the court. But Tobias said the process should be free from political gamesmanship.

“It is a bad practice, bad for the court and the legislature,” Tobias said.

Does the court reflect Virginia diversity? 

Meanwhile, members of the organized Jewish community have asked lawmakers and Youngkin to consider a Jewish justice, especially since there has never been a Jewish member of the Virginia Supreme Court in the state’s history. Jeffrey Brooke, a lawyer in Virginia Beach, wrote a letter to lawmakers signed by 18 other lawyers and community leaders. 

“The undersigned are non-partisan and and at the same time concerned about quotas and religious litmus tests,” the letter states. “But at some point, the citizens of the commonwealth must ask themselves as we do, why  would a religious group which has been so essential for the administration of justice in Virginia be excluded from the Supreme Court bench for all of these centuries?”

Of the five justices currently on the state Supreme Court, two are women and two are Black. 

Elsewhere across the country, many state Supreme Courts do not reflect the diversity of the state they service. As recently as last year, only 58 of the 339 state supreme court justices across the country were people of color, according to a report from the Brennan Center. The report looked at race, gender and previous careers but not at the religious faith or identify of justices.