Amid sniping about a snub of criminal defense attorneys seeking Court of Appeals judgeships and calls for diversity from the U.S. president and the General Assembly, the volunteers who evaluate Virginia judicial candidates now face close perusal of their work.
Changes in the political winds, demand for reform of the Virginia appellate structure and an open seat in what has been an all-white federal bench west of the Blue Ridge are factors combining to increase pressure on those who rank potential judges.
The new environment for judicial selection comes as the Virginia State Bar and other bar organizations prepare to vet a new crop of candidates for an unprecedented seven open seats on an expanded Court of Appeals of Virginia.
Many of the same groups also will evaluate applicants who hope to be recommended for a seat on the U.S. District Court for the Western District, which has never had a person of color as a judge.
Defense candidates snubbed
Calls for diversity are no surprise given the new Democratic majority in both chambers of the Virginia legislature, but the criminal law divide is especially fraught. For a decade and a half, Republicans have had free reign to choose judges and the Court of Appeals is laden with former prosecutors and lawyers who served in the attorney general’s office.
The heat of that issue was turned up when a Virginia State Bar committee declined to rate two accomplished criminal defense attorneys as “qualified” in a Feb. 3 report. Defense advocates howled in protest, including the state-funded Virginia Indigent Defense Commission.
State Sen. Joe Morrissey jumped into the fray, saying the credentials of the spurned attorneys were “nothing short of stellar.” He questioned how the VSB’s Judicial Candidate Evaluation Committee could have overlooked the qualifications of assistant federal public defender Lisa Lorish and Catherine French Zagurski, chief appellate counsel of the VIDC.
The VSB report indicated that, due to the pandemic, candidates may not have been interviewed by the entire committee, as in the past. The committee “received oral summaries of the interviews and investigations of the candidates conducted by assigned Committee members,” the Feb. 3 report said.
Morrissey demanded more information. In a March 16 Freedom of Information Act request to the VSB, he requested details of the vetting process. He was still waiting for a response as of March 22, he said. Lynchburg attorney Bevin R. Alexander Jr., who chaired the VSB committee that produced the Feb. 3 report, declined to comment March 22.
The Court of Appeals expansion plan became a target for Del. Kirk Cox, R-Colonial Heights, a gubernatorial candidate who tweeted March 6 that “Virginia Democrats are going to pack the Court of Appeals with 6 liberal, activist Judges.”
Cox said he proposed staggering the appointments of new judges, but claimed that Democrats “would rather ram through all 6 appointments at once while they have power.”
Democrats dismissed the prediction as electoral rhetoric.
“I don’t see the court being conservative or liberal in a political sense,” said Sen. Chap Petersen, D-Fairfax.
Largely ignoring the turbulence over the early VSB report for the Court of Appeals, General Assembly leaders on March 16 simply requested a new round of evaluations by the VSB and other statewide bar associations. Applications are due on April 15.
But the request for new evaluations came with new guidance. The letter from leaders of House and Senate courts committees noted that the Court of Appeals expansion legislation includes a directive that the Assembly consider “regional diversity” for judicial selection.
“We are also dedicated to ensuring diversity of racial and practice areas to the Court. Accordingly, we would hope your associations would likewise consider these matters in your candidate reviews,” the committee leaders wrote.
“That’s important,” said Sen. John Edwards, D-Roanoke, chair of the Senate Judiciary Committee. Interviewed March 19, he said he would add gender diversity to the list of objectives.
House Majority Leader Charniele Herring shares an expansive view of the diversity quotient.
“While it is essential to elect judges based on their qualifications, we cannot ignore the need for diversity of race, gender, religion, sexual orientation, geography, and practice area,” Herring said March 23. “The duty to elect judges falls on the General Assembly, which makes it our responsibility to ensure we are always working to make sure the bench reflects the people of the Commonwealth.”
“I think we’re looking for a court that reflects the demographics of Virginia and a court that has the top legal minds,” said Petersen.
“The code directs us to look at it, so it seemed reasonable for the bar to look at it as part of their process,” said Sen. Scott Surovell, D-Fairfax County.
The call is similar when it comes to rating judges for federal seats on the bench. A Dec. 22 letter to U.S. senators from the Biden-Harris transition office says the new White House is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”
The letter from now-White House Counsel Dana Remus asks senators to recommend at least three candidates for each position.
Virginia’s two U.S. senators are considering applications for a federal judgeship in the Western District, a position that has never been held by a person of color. The opening results from Judge James P. Jones’ decision to take senior status in August.
Bar groups respond
The VSB says it has tried to avoid the political side of evaluations.
“The VSB Judicial Candidate Evaluation Committee members work hard to evaluate applicants based on the criteria posted on the VSB’s website – legal ability, integrity, temperament, impartiality and diligence,” said current JCEC chair Maryse Allen. “While we are not unaware that we work against a backdrop of political considerations, that is not our focus. We strive to identify those who are qualified or highly qualified for the positions legislators must fill,” Allen said.
“Ultimately, politicians make the appointments and we hope that the results of our background investigations, review of materials, candidate interviews and deliberations are valued and helpful,” she added.
The Asian Pacific American Bar Association of Virginia said it welcomed the “increased recognition that a diverse judiciary is an important consideration to selecting judges who represent the incredible diversity of the Commonwealth,” in the words of member Michael K. Kim.
“APABA-VA looks forward to continuing its work of increasing the diversity of Virginia’s judiciary, which frankly is not reflective of Virginia’s diverse citizenry. We are encouraged that increased scrutiny in diversity will lead to an increase in applications by candidates who are of Asian and Pacific American background who will also be selected to the judiciary,” Kim said.
The Virginia Trial Lawyers Association emphasized its support of a “strong, diverse and independent judiciary.”
“The goal is and remains to ensure that the best possible candidates are appointed to the bench, and VTLA is committed to its role in that process,” said incoming VTLA president Craig Davis.
The Virginia Association of Defense Attorneys said it responds to requests for evaluations from legislators and the VSB.
“As our evaluations are for their benefit in making their decisions, we welcome the legislators’ input on how our evaluations might be of greater benefit to them. The VADA has always been sensitive to issues of diversity, but each candidate is assessed on their own merits,” the VADA statement said.
The group noted that not every candidate chooses to be rated by the VADA.
The Virginia Bar Association declined to comment.
Surovell questioned the VSB’s practice of ranking candidates based on their performance in earlier evaluation sessions, sometimes for different judgeships. The Feb. 3 VSB report included “highly qualified” rankings for circuit judges David Lannetti of Virginia Beach and Joseph Milam of Danville. Lannetti had been evaluated in 2019 for a federal judgeship and Milam had been evaluated in 2011 for the Supreme Court of Virginia.
Surovell said the makeup of evaluation committees can be important. He said the Fairfax Bar Association enhanced the impact of its judicial recommendations when it diversified the panel that interviews candidates.