ODBA takes a look at judicial selection

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GLEN ALLEN – Conversations about how Virginia chooses its judges often arrive at a conclusion similar to Winston Churchill’s observation about democracy: It’s the worst way to proceed, except for all the rest.

“We tend to think our process is probably preferable” to direct election of judges, said Supreme Court Justice Cleo E. Powell. Powell spoke at a May 29 panel discussion on judicial selection, evaluation and retention, as part of the Old Dominion Bar Association’s annual meeting.

Powell said she has “never been able to wrap my head around” how one goes about “fundraising and campaigning” and then goes about handling cases, issues and parties that may have been a part of that campaign.

Chief Judge Marilynn Goss, of the Richmond Juvenile and Domestic Relations Court, and Professor Carl Tobias, of the University of Richmond Law School, also appeared on the panel, moderated by Richmond lawyer and past ODBA president Vinceretta Taylor Chiles.

Virginia’s move to include ratings from the Judicial Performance Evaluation program in this year’s reelection process provoked controversy, with five rated judges denied reelection. Two of the judges who lost their seats on the bench were African-American female judges – Chief Judge Birdie Hairston Jamison, a 24-year veteran of the Richmond General District Court Bench, and Chief Judge Karen Burrell, who was seeking a second term on the Norfolk Circuit Court.

Legislators questioned several candidates about low JPE ratings prior to denying re-election. Additional general district judges not afforded new terms were Virginia Beach Judge Pamela E. Hutchens, Chesapeake Judge David L. Williams and Newport News Judge Alfred O. Masters Jr.

Chief Justice Donald W. Lemons of the Supreme Court of Virginia has appointed a committee to review the JPE process and make possible recommendations to the court program. The committee will hold its first meeting June 9, according to Powell, who is heading the study committee.

Getting on track

Lawyers who are interested in being a judge need to have a sponsor, or patron, in the General Assembly, “hopefully, more than one,” Powell said.

“The process begins whenever there’s a judicial vacancy,” Goss said. In order to identify a patron who would promote her candidacy, Goss wrote to area senators and delegates to say she “would welcome the opportunity to interview with the legislators.”

Judicial candidates may interview with local bar groups for local judgeships, and with statewide bar groups for appellate seats. The various bar groups have different ways of rating candidates, with some offering general endorsements and other bar groups rating candidates along a continuum, from “not qualified” to “highly qualified.”

Goss encouraged lawyers to sit on bar association judicial selection committees, to “gain experience with the interview process” from the other side of the table prior to seeking appointment.

Tobias, who spoke primarily about the selection process for federal judgeships, said any selection needs to be “a merit-based process.” He would “prefer a federal-type process” for Virginia judicial selection, with nomination of a judge by the governor and the legislature confirming, “but it’s not going to change anytime soon” in Virginia, Tobias said.

Judicial selection in Virginia has “always been a political process, I think, on some level,” Powell said. With some seats, “it’s the local delegation that makes the call,” she said, and less weight is given to bar association recommendations.

“I’m not sure it’s more political” than in the past, but judicial selection in Virginia is “now a more partisan political process,” Tobias said. “Richmond looks more like Washington.”

“Bar associations need to become stronger and more vocal,” Goss said, in order “to prepare candidates, their members, for judgeships. We need to get young folks into the bar if we want a more diverse bench,” and “teach and mentor young lawyers.”

Performance reviews were new

The JPE program “was put in place to give judges a tool to improve performance,” and to give members of the General Assembly a tool to use in the reappointment process, Powell said.

The program calls for initial, interim and final evaluations, surveying lawyers who practice before the judge being evaluated, and select other court personnel who interact with a judge. The first two surveys are confidential, but shared with the judge, and the results of the third survey are provided to the legislature.

From 2009 until 2014, surveys were suspended because there was no funding for the program, Powell said. Last December, the program sent 20 survey reports to the General Assembly. For the first time, legislators had survey data that also was available to the public.

“It was not lost on the [Supreme Court] that something went awry,” Powell said, leading Lemons to appoint the committee to examine, the process, the tools and the reporting for the JPE.

The JPE survey conducted by the Virginia Commonwealth University Survey and Evaluation Research Laboratory and delivered to the General Assembly in December 2014 described the survey methodology.  For all judges, surveys were submitted by attorneys who had appeared before the judge within a specified time period: 12 months for district court judges, and three years for circuit court judges. Attorney surveys were distributed and completed electronically.

Rating the ratings

Audience members at the ODBA program posed questions about judicial independence and about the validity of performance reports that compile anonymous responses from a self-selecting group of lawyers who assert that they practice before a particular judge.

“How is it fair that judges don’t get to confront their accusers?” asked Richmond lawyer Beverly A. Burton, a former ODBA president. “Having no ability to challenge them is anathema to due process.”

Chiles questioned whether there was only an “honor code” at work to ensure that lawyers who complete the surveys are qualified to rate the judge, and whether “legislators who practice in front of these judges may have a conflict of interest” when they choose judges. For a judge seeking reelection, some of the lawyer-legislators “are literally your boss,” Chiles said.

“There needs to be a better way of identifying people who actually appear before those judges, to control for the quality of those responses,” Chiles said.

“There is a recognition in the program that the ‘squeaky wheel'” may be more likely to complete a survey, and “the outliers are weeded out,” Powell said. The study committee will “look for hidden biases in the tool itself. We’re looking at the process to see if we can fix some of the problems,” she said.

Both sides now

“I see it from both sides,” said Portsmouth Circuit Judge Kenneth R. Melvin, who served in the General Assembly for 24 years.

The key thing to remember is that “when you are selected as a judge, you have become a political appointee. It’s a political appointment. You have to do your political due diligence in a very professional, low-key way.”

The JPE surveys “are not a magic bullet. They are not going to determine if you keep your job on the bench,” he said. The judicial selection process looms large for lawyers, but for legislators facing thousands of pieces of legislation during a session, there may be more important matters “than giving some lawyer a job.”

“If it’s a political appointment, it can be taken away. Sometimes the numbers just turn against you,” Melvin said.

Lawyers with an interest in being on the bench may do well to remember, their potential legislative patrons want to retain their jobs too. Lawyers in private practice can start building relationships by working for candidates they believe in.

“Give them money and time, work for them. Work for your candidates,” Melvin said.