Virginia Lawyers Weekly VA Lawyers Weekly
A resolution to questions about the future of Virginia’s newest Supreme Court justice was nowhere in sight this past week with Democratic Gov. Terry McAuliffe locked in a stalemate with Republican legislators.
McAuliffe on Aug. 26 affirmed his determination to reappoint his choice for the Supreme Court seat, former Fairfax Judge Jane Marum Roush, despite warnings from Republicans of impending legal turmoil.
House Speaker William J. Howell responded the next day with a letter outlining the GOP’s legal arguments that any appointments made before January could be invalidated.
Participants and observers alike said they saw no sign of any overtures for compromise. Bar groups reacted with dismay at the conflict.
“I think we just have a standoff here,” said Sen. A. Donald McEachin, chair of the Senate Democratic caucus.
Senate Democrats contend the Assembly session ended when they adjourned Aug. 17, opening the door for McAuliffe to make more recess appointments. Republicans say the Assembly is still in session since the Constitution does not allow one house to adjourn for more than three days without the consent of the other house.
McAuliffe was undaunted in his plans for Roush.
“I will reappoint her. I’ve already advised the speaker and the Senate leader,” McAuliffe told a radio audience.
The governor brushed aside suggestions that he should have been more solicitous to Republicans in appointing Roush.
“This petty who-called-who, we do not have time for this. She is by far the best justice. Everybody agrees that her qualifications are the best. We do need a justice from Northern Virginia; it’s been a long time. … She came with the highest recommendations,” McAuliffe said.
“Unfortunately, the Republicans tried to use her as a partisan political pawn so they could get me to cancel the redistricting session. I couldn’t cancel it. I was under court order,” McAuliffe added.
McAuliffe had called the Aug. 17 redistricting session in response to a federal court directive to redraw boundary lines for Virginia’s 3rd Congressional District. He said opposition to Roush was a GOP ploy to get him to cancel the session.
Despite some calls for her to decline reappointment, McAuliffe said Roush wants to stay on the court.
“She does. She’s excited. I give this woman tremendous credit. She’s tough as nails,” the governor said.
McAuliffe’s confidence in his course ignored the legal clouds that would hang over any further recess appointments, Republicans said.
Howell and fellow Republicans pointed to an early 70s dispute over legislative status in Pennsylvania. Considering similar facts and law, that state’s Supreme Court invalidated approximately 680 gubernatorial appointments.
“Based on the joint procedural resolution agreed to by all members of both the Virginia House of Delegates and the Senate of Virginia, the plain language of the Constitution of Virginia and a review of relevant case law and legal opinions, it is without question that the General Assembly remains in session,” Howell said in an Aug. 27 letter to McAuliffe.
Questionable judicial appointments would equate to questionable court authority, Republicans warned.
After her reappointment, anyone disappointed with a Supreme Court decision with Roush on board could challenge the validity of the ruling, said Sen. Ryan T. McDougle, chair of the Senate Republican Caucus. The same would be true, he said, for any judge the governor might appoint to fill Roush’s vacant seat on the Fairfax circuit bench.
“The litigants in those cases would have a very legitimate argument to either directly or collaterally attack those actions,” McDougle said.
McDougle predicted any legal fights over the Assembly deadlock will come in individual cases decided under McAuliffe-appointed judges, not with some high-level constitutional donnybrook with the Assembly.
The governor seemed to agree.
“This is between the Senate and the House. I doubt the Supreme Court would want to take this up,” McAuliffe said.
Attorneys’ protests over Roush’s predicament seemed to fall on mostly deaf ears at Capitol Square.
“Because both sides in this dispute have openly acknowledged the fitness and high qualifications of this sitting justice, and because considerations that have nothing to do with this justice appear to be the source of the dispute, her removal from office would be completely unjustified,” read an Aug. 14 statement of 10 former and present presidents of the Loudoun County Bar Association.
The statement echoed sentiments expressed by several other groups of present and former bar leaders.
Nevertheless, McDougle said no one is talking about making peace with a compromise candidate or political trade-offs.
“I am not aware of any discussion between the executive branch and Senate Republican leadership to come up with a different discussion,” he said.
“I am not aware of any overtures for compromise,” McEachin concurred.
“I think the drama in this matter is yet to come,” McDougle said.
