Virginia Court of Appeals Judges Cleo E. Powell and Elizabeth A. McClanahan appear to be set to move up to the Supreme Court of Virginia under an agreement between House Democrats and Senate Republicans.
The General Assembly will convene Friday to elect the judges, and House Courts Chairman David Albo, R-Fairfax, said the agreement includes the election of Glen A. Huff, a Virginia Beach civil litigator and former law partner of Gov. Robert F. McDonnell, and Stephen R. McCullough, senior appellate counsel in the Virginia attorney general’s office, to replace Powell and McClanahan.
Albo’s counterpart, Sen. Henry L. Marsh III, R-Richmond, said he believes a consensus has been reached but would not disclose those likely to be elected before his committee meets.
The four candidates are the same ones that the Republican caucus in the House offered during the regular session of the legislature. The Democratic caucus in the Senate balked at the proposal and insisted that it should be able to select one of the candidates for the court of appeals.
The Republicans initially had proposed McClanahan and another Court of Appeals Judge, D. Arthur Kelsey, for the Supreme Court, but had tentatively agreed to accept Powell rather than Kelsey while sticking by their two candidates for the intermediate appellate court.
The announcement of the apparent deal followed a blunt letter Thursday from McDonnell to House Speaker William J. Howell and Senate Majority Leader Richard L. Saslaw.
McDonnell told the legislative leaders the General Assembly needs to appoint justices and judges or get out of the way so that he can do so. Under state law, the governor appoints judges in the first instance when the legislature is unable or unwilling to do so – but he can make the appointments only if the legislature is out of session.
The legislature is in session to work on congressional redistricting and to appoint judges, but it had adjourned last month and had set no date to return to address those topics.
The legislature also will be in a position to fill 10 circuit and district judgeships, but local delegations remained divided on many of them.
Mary Kate Felch, the legislative liaison with the court system, said she hopes that the scheduling of the session will prompt the delegations to renew discussions about replacements. The local delegation of the party with a majority in the legislature typically has the final say on judicial elections. That calculus is complicated when opposing parties each have control of one of the houses.
One election that seems likely is the elevation of York Juvenile and Domestic Relations District Judge Richard Y. AtLee Jr. to fill the vacancy created by the death of York Circuit Judge N. Prentis Smiley in December 2008. Williamsburg Deputy Commonwealth’s Attorney Cressondra B. Conyers appears to be in line to get AtLee’s seat.
It was not clear what, if anything, the legislature might do on redistricting if it returns on Friday.
Under the Voting Rights Act, the legislature has until the end of the year to draw the boundaries. If it does not do so by then, federal judges would be likely to draw them.
Senate Democrats might think they would fare better with the judges than under any deal they could reach with House Republicans.
The Republican redistricting proposal likely would lock in the current 8-3 split in favor of the Republicans for the next decade. Democrats are backing a plan that would create the possibility of a 7-4 split that could include the election of a second African-American to the state’s congressional delegation.