Va. GOP leaders favor Alston over Roush for Supreme Court

Newly named Virginia Supreme Court Justice Jane Marum Roush could be unseated within months at the hands of Republican legislators dismayed they weren’t consulted by Gov. Terry McAuliffe on on his interim appointment.

The House and Senate Republican caucuses will support Virginia Court of Appeals Judge Rossie D. Alston Jr. for the position vacated last month by Supreme Court Justice LeRoy F. Millette Jr., according to an Aug. 2 news release from party leaders. The announcement signaled a possible battle over the high court seat based on tension between McAuliffe and the Republican-dominated Assembly.

On July 27, McAuliffe appointed Roush, a Fairfax County Circuit Judge, to succeed Millette. Roush’s pro tempore appointment lasts only until the first 30 days of the next Assembly session unless the legislature approves the governor’s choice for a full term. The issue could come to the fore this month, when the Assembly is expected to reconvene to address Congressional redistricting.

“Although Gov. McAuliffe has designated a different candidate, who is also highly qualified, a consensus has developed among the members of the Senate Republican Caucus that Judge Alston should fill this vacancy,” said Senate Majority Leader Thomas K. Norment Jr, R-James City, in the GOP news release.

“As a result, I expect Judge Alston will be elected to the Virginia Supreme Court during the special session,” Norment added.

“Judge Alston has earned widespread support in the House, and it is our intention to elect him when the special session convenes,” said House Speaker William J. Howell, R-Stafford.

The unexpected news, announced late on a Sunday evening, aroused the ire of McAuliffe.

“Republicans’ decision to throw a distinguished jurist of 23 years off of the Supreme Court with no job to return to is without precedent in Virginia history,” said a McAuliffe spokesperson.

“Justice Jane Marum Roush was first recommended to Governor McAuliffe by Dave Albo, the Republican Chair of the House Courts of Justice Committee and touted by Republican leaders like Greg Habeeb. It is no surprise that Republicans in the General Assembly would politicize this process, but it’s a tragedy that it will cost Virginia the service of a qualified female Supreme Court Justice,” said Brian Coy, McAuliffe communications director.

Albo, R-Springfield, stood beside McAuliffe as the governor introduced Roush as his choice July 27, but McAuliffe apparently was unable to win significant bi-partisan support for his appointee.

“It seems surprising to me it was not worked out beforehand,” Albo said.

Attorney General Mark R. Herring said the Republicans’ action will limit the field for future interim appointments.

“In their haste to start another unnecessary partisan fight, the Republican leadership has made it incredibly difficult to ask a judge to accept a gubernatorial recess appointment in the future, and that could cause real harm to our courts,” Herring said in a prepared statement. “This unprecedented move takes partisanship to a new low.”

Del. Habeeb, R-Salem, said McAuliffe blundered by failing to collaborate with Assembly members.

“I think Jane Roush is extraordinary, but they never called me before picking her,” Habeeb said, emphasizing he was referring to the GOP rank-and-file.

McAuliffe also failed to consult with Republican leaders such as Norment, Howell, Sen. Ryan T. McDougle, R-Mechanicsville, and Del. M. Kirk Cox, R-Colonial Heights, Habeeb said.

“This is what happens,” he said. The result, he said, “does an incredible disservice to Justice Roush.”

Albo suggested the push for a different candidate arose in the Senate.

“It seems to me the Senate wants Rossie Alston,” Albo said.

Norment – the Senate majority leader – said he had no further comment on judicial selection.

Lt. Gov. Ralph S. Northam accused Republican leaders of “playing politics” with Roush’s appointment.

“Rejecting her appointment after members of their caucus initially recommended her, and after she was sworn in as a justice, reflects a lack of leadership from the Republican caucus and calls into question the motives behind this unprecedented move,” Northam said.

Republicans hold two-thirds of the House of Delegates and a narrow majority in the Senate. Nevertheless, Democrats could try to keep Roush in office.

Sen. A. Donald McEachin, D-Richmond, said he believes Roush’s support will become bi-partisan.

“The Assembly has never taken a sitting Supreme Court justice off the bench for purely political reasons. The Assembly has never removed a justice in a special session,” McEachin said.

“I don’t believe at the end of the day the Republican caucus wants to politicize the judiciary in this fashion,” McEachin said.

If Alston is elected to the Supreme Court by the Assembly, his elevation from the Court of Appeals will open a vacancy for the Assembly to fill on that court, as well.

Updated Aug. 3 to rewrite, add additional comments. Updated Aug. 6 to add date references.