Judges and aspiring judges are still smarting over the General Assembly’s treatment last year of two members of the Court of Appeals up for re-election, according to a veteran of that court.
The 2008 legislative foot-dragging on re-election of Judge Robert Humphreys and Judge Jean Clements “has had significant consequences” for the judiciary and the judicial system, Judge G. Steven Agee told the Richmond Bar Association at today’s luncheon meeting.
Although Agee told the RBA the most salient feature of his distinguished resume may be his “trouble keeping one job,” that resume includes 20 years of legal practice, 12 years in the General Assembly, three years on the Virginia Court of Appeals and five years on the Supreme Court of Virginia. Last May, Agee was confirmed to a seat on the 4th U.S. Circuit Court of Appeals.
So the judge is well-positioned to offer some perspective on the separation-of-powers yin-yang between the legislature and the judiciary. And he’s ready to talk.
“I’ve got a lifetime appointment. And my employer prints its own money,” he said.
But seriously, folks. Agee told his audience that, as citizen-lawyers, they are “better equipped, educated and engaged” than any other group to advocate for an independent judiciary. That advocacy may mean monitoring the judicial election process, since “judges face certain restrictions on what they can do.”
Last year’s drawn-out process meant uncertainty for Clements and left Humphreys briefly unemployed, “through no fault of his own.” The legislature’s “course of conduct deserves much greater attention than it has received,” according to Agee.
Both judges had “impeccable credentials” and “there was no political opposition to either,” Agee said.
“But the General Assembly adjourned without electing either one. You have to go back to the period of reconstruction” for another example of a failure to re-elect a sitting appellate judge, Agee said.
Agee said anecdotal evidence indicates the episode “had a significant effect on the entire judiciary.” Stories have circulated that “any number of district court, circuit court [judges] or members of the bar who” might have considered judgeships, “chose not to do that.
“Why would you put your family at risk, close down your law practice” and then face the possibility of losing your job, Agee asked. “There’s no bail-out plan for unre-elected judges.”
“The negligent acts” that led to this situation “were purely bipartisan,” the judge said.
Calling Virginia’s system for legislative election of judges “probably the best,” on balance, Agee said the “system only works when there is a check and balance kept in place.”
By Deborah Elkins