A defecting Republican senator denied the party its choice for a position on the Virginia Supreme Court Monday, and a parliamentary maneuver may keep the governor’s candidate in office until January.
New Supreme Court Justice Jane Marum Roush and Court of Appeals Judge Rossie D. Alston Jr. both failed to win legislative approval for a full, 12-year term on the high court.
But Gov. Terry McAuliffe planned to make a second interim appointment of Roush before her term ends Sept. 16, thus keeping her in office until the next meeting of the Assembly.
McAuliffe’s plan followed an unexpected maneuver by Democrats in the Senate to have that body adjourn without a date for reconvening. McAuliffe said the procedural situation allows him to make the second interim appointment.
Republicans disagreed and claimed the Senate adjournment violates Virginia’s constitution and stymies court-ordered redistricting efforts.
Sen. John C. Watkins, R-Midlothian, was the key to the Democrats’ two-part power play. Watkins broke with his party and voted with Democrats to deny Alston’s nomination, then voted to adjourn the Senate “sine die,” ostensibly giving McAuliffe a free hand on recess judicial appointments.
Republican leaders issued a news release calling the move unconstitutional.
“Democrats have single-handedly shutdown any possibility of a legislative remedy on redistricting and have no one to blame but themselves,” the GOP leaders said in a statement.
Republican leaders said Roush has no chance of election to a full term, regardless of any second recess appointment.
The two judicial candidates – Roush and Alston – were caught up in a partisan struggle sparked by McAuliffe’s failure to clear with Republican leaders his interim appointment of Roush to fill the vacancy left by the retirement of Supreme Court Justice LeRoy F. Millette.
Roush took office July 31. Lacking Assembly approval, her appointment currently is set to expire Sept. 16.
Alston’s nomination failed in the Senate on a 20-20 vote, with Democratic Lt. Gov. Ralph Northam then casting a no vote to make the total 21-20 against Alston, the Republicans’ choice for the Supreme Court seat.
Roush never received even a committee interview or certification as “qualified” for Assembly election.
The controversy led Democrats to go on the offensive against Alston.
Democratic legislators tried, without much success, to suggest that Alston had failed to properly file conflict of interest forms, had mishandled controversial cases on the trial court bench and might favor religion-based objections to equal treatment for gays and lesbians.
For their part, Republicans tossed a few jibes at Roush.
Senate Majority Leader Thomas K. Norment Jr. criticized Roush’s rejection of a Court of Appeals seat, questioning her claimed lack of experience in criminal, domestic and workers’ compensation law. Other Republicans proclaimed Alston the more experienced and highly rated candidate.
Democrats attempted to cast the Roush opposition as antipathy to women judges, while Republicans contended Democrats were ignoring the opportunity to make history by electing a third African-American justice (Alston) to the Supreme Court.
Watkins expressed dismay at the comparisons and criticism.
“We have not held ourselves very high in this hour. There were two very accomplished jurists, two very accomplished attorneys, and we have lowered ourselves to debate their qualifications in most unflattering terms here on the floor of the Senate,” Watkins said.
“I think we need to go back to square one,” he said.
Watkins said killing the Alston nomination would leave the situation unchanged for the immediate future.
“It puts the burden back on us to figure out what is in the best interest of the people of Virginia and what is in the best interest of that court.
“You know what, I doubt if either one of those two people want to serve now. I have my doubts. And I couldn’t blame them,” Watkins said.
Watkins referred to earlier votes to block a Roush interview before the Assembly courts committees.
“I think we owe them the respect – we owe any justice the respect – that it be done properly, that they be given the opportunity for an interview, that we vote on it, and then we fill that seat in a timely fashion.”
Earlier, Norment confirmed he and other Republican leaders were miffed that McAuliffe had not called them before announcing Roush as his appointee.
“No one on this side received an inquiry as to whether this judicial appointment was acceptable. As a matter of fact, we learned about it in the newspaper,” Norment said on the Senate floor.
A pair of close votes doomed Roush’s chance to get a vote by the full House and Senate.
First, a 6-6 tie vote of the House Courts judicial subcommittee ended a bid to have Roush interview before the panel. Norment ruled against a similar motion for the Senate Courts Committee.
Later, the Senate committee voted 8-7 on party lines to defeat a motion that would have placed Roush’s nomination before the full Senate.
Before the legislators arrived early Monday, McAuliffe appeared with Roush to defend his handling of her appointment and to urge a legislative hearing for her.
“I am embarrassed for her, I am embarrassed for the citizens of the commonwealth of Virginia, that this qualified justice … has been treated in this manner,” McAuliffe said in a morning news conference.
After the tumultuous day, McAuliffe lashed out at the GOP.
“It is disgraceful that Republicans have turned a serious decision affecting Virginia’s entire judicial system into an embarrassing partisan circus,” McAuliffe said.
Roush said she was turning her attention to court business, where writ panels are scheduled Sept. 2 and 3.
“I look forward to putting all of this drama behind me and devoting my energies to the work of the Supreme Court of Virginia.”
Two district level judges emerged with Assembly approval Monday. Legislators awarded full terms to interim appointees William W. Eldridge IV, a Harrisonburg general district judge, and Lyn M. Simmons Jones, a Norfolk juvenile and domestic relations judge.
Jones is the wife of Norfolk Circuit Judge Jerrauld C. Jones, a former state delegate.
Updated Aug. 18 to rewrite and add additional reporting.