RICHMOND (AP) — It wasn’t the 31 conservatives in the Virginia House who voted no that denied Tracy Thorne-Begland’s bid to become the first openly gay judge elected to the bench in Virginia. It was those who abstained or didn’t vote that did him in.
Thorne-Begland, a frontline criminal prosecutor in Richmond, got 33 yes votes, mostly from Democrats and eight Republicans in a vote cast in the wee hours of Tuesday morning. Thirty-one voted no.
But 10 delegates invoked the House’s “Rule 69” to cast an abstention vote, and 26 did not vote at all. Each was just as deadly as any vote of no, allowing a legislator to help block a judicial appointment without the honest sting or accountability of just voting no.
In Virginia, judges must get affirmative votes of majorities in both the 100-member House and the 40-member Senate. So abstentions and non-votes have the same effect of denying a nominee a majority while leaving constituents to speculate on a legislator’s intent.
Thorne-Begland fell 18 votes short of the 51 House votes he needed. In just 15 minutes, the House voted on 41 nominees, and Thorne-Begland was the only one whose confirmation failed. The other 40 were approved with 77 votes or more.
To hear his opponents tell it, the vote had nothing to do with sexual orientation.
“It’s unfortunate that members on both sides of the aisle focused on lifestyle — being a gay,” said Del. Christopher Stolle, R-Virginia Beach, a physician and, like Thorne-Begland, a former Navy officer. “That wasn’t it at all.”
Thorne-Begland’s confirmation ran into turbulence a few days before the vote when the socially conservative Family Foundation emailed alerts on May 11 to legislators and followers that an openly gay man had been nominated for the Richmond General District Court.
Thorne-Begland had spoken out for gay rights, the statement warned: “The question is, will his personal agenda take precedent over Virginia law and the Constitution?”
General district courts in Virginia spend their days adjudicating traffic tickets and misdemeanors, not pondering the weighty constitutional dilemmas of our time.
Del. Bob Marshall, the Prince William Republican who wrote Virginia’s constitutional ban on gay marriage and unsuccessfully sponsored legislation this year that would have accorded embryos the same legal standing as a person, took up the group’s cause.
Marshall, currying conservative support in his longshot GOP Senate primary bid against former Gov. George Allen next month, said Thorne-Begland’s life itself — living with his partner in Richmond and raising twins — “would be a contradiction to the constitution you swear to uphold and defend.”
Republicans were not in lockstep against Thorne-Begland. Del. Manoli Loupassi, a Richmond Republican and private lawyer who has known and practiced against the prosecutor in court for years, urged support for Thorne-Begland not only on the House floor but in the closed confines of the House GOP Caucus.
Loupassi and seven other Republicans voted for Thorne-Begland.
Stolle was among 10 delegates to invoke Rule 69, a House protocol that allows a member who has “an immediate and personal interest” in a matter up for a vote to avoid an ethical conflict by voting neither yes or no.
Thorne-Begland’s vote, taken at 1:13 a.m. Tuesday, presented no such conflicts to any legislator. Only three other abstention votes were cast for the other 40 nominees combined.
Del. Joe May of Loudoun said the practice of voting to abstain became the preferred means for expressing opposition to judicial candidates about a dozen years ago under former House Speaker S. Vance Wilkins.
“Voting for judges is different from voting for ordinary legislation,” May said. “Over the years, Rule 69 became a way to make a statement instead of voting no. In the end, the thing that matters is whether they have 51 votes or not.”
Other House members avoided voting altogether. Of the 26 members who did not vote on the Thorne-Begland nomination, eight had voted for the previous nominee just 23 seconds earlier, and would be back in their seats voting on the next nominee just 23 seconds after the roll closed on the Thorne-Begland vote. Seventeen delegates had left the Capitol and missed the entire judicial vote.
“That’s just a way to effectively vote no,” Del. Todd Gilbert, R-Shenandoah, said of the lone judgeship vote he missed.
Thorne-Begland had been a Navy pilot when he disclosed his sexuality on national television, speaking out against the “Don’t Ask, Don’t Tell” policy President Bill Clinton had just imposed. If the Navy was furious, it didn’t show it: Thorne-Begland received an honorable discharge.
May, Stolle and other military veteran delegates contended in Associated Press interviews last week that their votes were swayed by Thorne-Begland’s decision to go public against the policy. The policy was repealed last September, allowing gays to serve openly.
That, they said, was a direct affront to required standards of military behavior that forbid active-duty soldiers, sailors, Marines and airmen from speaking out on political and social issues of the day.
Del. Steve Landes, R-Augusta, said he knew Thorne-Begland was gay and considered voting for him until he learned that he had spoken out while in the military.
“Judges have to make judgment calls. In this case, the gentleman did not show good judgment. He took an oath and he violated it,” he said.
Landes voted to abstain.
– By Bob Lewis