The newspapers are filled with news of controversies in the General Assembly over reappointment of Virginia judges. What our representatives should be arguing over instead is submission of a constitutional amendment to scrap the entire term-appointed system in favor of the original Virginia system of life-tenured judges. While a handful of litigants and lawyers in various pockets of Virginia complain to their representatives over a particular judge, the entire people of Virginia suffer under a system which has encouraged an unprecedented growth of statutes under which they lie choking and gasping.
We claim our greatest contribution to the advancement of individual liberty as the creation of a Constitution, containing fundamental law superior to statutory law. Prior to the Revolution and adoption of Bills of Rights, law was simply the will of the legislator. The Virginia Founding Fathers, like their federal counterparts, recognized that this fundamental law could prevail over statutory law only when the conflict between the public and individuals in trials was resolved by life-tenured judges who were not answerable to the other branches of government.
Judge Roane explained the concept in the case of Kamper v. Hawkins, 3 Va. 41 (1 Va. Cases) (1793),
“If there can be judges in chancery who have no commission during good behavior, their tenure of office is absolutely at the will of the legislature, and they consequently are not independent. The people of Virginia intended that the judiciary should be independent of the other departments; they are to judge where the legislature is a party, and therefore should be independent of it, otherwise they might judge corruptly, in order to please the legislature, and be consequently continued in office. It is an acknowledged principle in all countries, that no man shall be judge in his own cause; but it is nearly the same thing, where the tribunal of justice is under the influence of a party. If the legislature can transfer from constitutional to legislative courts, all judicial powers, these dependent tribunals, being the creatures of the legislature itself, will not dare to oppose an unconstitutional law, and the principle I set out upon, viz. that such laws ought to be opposed, would become a dead letter, or in other words, this would pave the way to an uncontrolled power in the legislature.”
During this session, a record 3,000 some bills have been introduced. Virginia’s Code Annotated, which as recently as the 1940s could be held in one hand, now measures 4 feet 5 inches thick. Fueling this unprecedented explosion of statutes are judges who dare not strike these laws down lest they not be re-appointed by their masters.
How would you like to be a judge up for re-appointment, and hear a Committee member say, “Oh, you are the judge who struck down 25 of our statutes as unconstitutional”? The Roman Emperor Sulla was considered a tyrant because he wrote the laws in such small letters and so high up that no one could read them. Yet our legislature have consistently out-Sulla’d Sulla by simply writing so many laws no human being can read them all.
Not until 1848 was the delicate tri-partite original Virginia system upset in favor of one where the legislature has reduced the judiciary to a state of mere subserviency. If Virginians are ever to shake the yoke under which they grovel, the balance must be restored. We need to disregard the rare complaints of “He is a rude judge,” or “This ruling was awful,” in favor of a system that will secure liberty to all Virginians.
As Alexander Hamilton wrote in The Federalist, No. 78,
“That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.”
Virginia’s radical experiment with term-appointed judges has not worked, and it is time to abolish it.