The state appears unlikely to get new judges before April 25 at the earliest, although the Republican caucus in the House of Delegates selected Virginia Court of Appeals Judges D. Arthur Kelsey and Elizabeth A. McClanahan as its candidates for two vacancies on the Supreme Court of Virginia.
If those two are elected to the high court, the caucus wants to replace them on the Court of Appeals with Glen A. Huff, a civil litigator in Virginia Beach and a former law partner of Gov. Robert F. McDonnell, and Stephen R. McCullough, senior appellate counsel in the Virginia attorney general’s office.
The ball now is in the court of the Democratic caucus in the Senate. It can accept those candidates or counter with its recommendations.
The Senate Courts of Justice Committee met this morning to certify as qualified candidates interviewed last week for appellate, circuit and district court openings, and it appeared that perhaps the legislative schedule could be juggled so that the House and Senate could consider filling at least some judgeships.
Before it could even take up the certifications, however, the committee learned that the House of Delegates had adjourned until April 25. The adjournment was driven by the continuing skirmishing between the Republicans and Democrats over congressional redistricting and was largely unrelated to the judgeships.
The Senate committee then adjourned without certifying the candidates. Legislative rules require certification of candidates by the courts committees before they can be considered by the full House and Senate.
The legislature has 21 circuit and district vacancies to fill in addition to the Supreme Court seats, and the number could grow if, as expected, district judges are elevated to circuit seats. Local delegations have agreed on candidates to fill many of the vacancies
Preliminary indications are that Senate Democrats could accept McClanahan but are leery of Kelsey and would much prefer another Court of Appeals judge, Cleo E. Powell. The Democrats also might be willing to accept Huff on the Court of Appeals but aren’t familiar enough with McCullough to agree on him without further discussion.
Sen. A. Donald McEachin, D-Richmond and a member of the Courts of Justice committee, said Kelsey is not acceptable to him. McEachin said he was not impressed with Kelsey when he appeared before the Senate in November when 10 candidates were interviewed for the vacancy created by the retirement of Justice Lawrence L. Koontz Jr.
Kelsey has reputation as perhaps the most intellectual of the Court of Appeals judges but also the most conservative.
The Courts committees interviewed an additional 11 contenders last week in response to an invitation by the chairmen of the courts committee for additional candidates following the death of Justice Leroy Rountree Hassell Sr. in February.
Historically, appellate judges have been selected by the caucus of the party with a majority in each house. That can get complicated when, as is the case now, Republicans have a majority in one house of the legislature and Democrats control the other.
With an impasse possible, Republicans are in the driver’s seat because McDonnell would fill the vacancies if the legislature is unable to do so. His selections would be subject to legislative approval at the next session of the General Assembly, but legislators have not in recent history failed to elect a gubernatorial appointee to the high court.