THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, January 15, 1996 TAG: 9601150045
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARGARET EDDS AND DAVID POOLE, STAFF WRITERS
DATELINE: RICHMOND LENGTH: Long : 155 lines
Over the decades, Republicans tried satire, protest and righteous indignation to gain a voice in the selection of Virginia's judges.
All to no avail.
Then came this year's 20-20 split in the partisan makeup of the state Senate and, presto, overnight a little simple arithmetic accomplished what years of carping could not.
On Friday, the Senate adopted rules that strip the Democratic caucus of its stranglehold on the naming of some 360 judges in the state. Instead, the authority to recommend jurists will shift to local legislative delegations, regardless of whether Democrats or Republicans dominate.
While the Democrat-controlled House will continue to operate under the old rules, the Senate shift dooms the Democrats-take-all judicial selection system that has been one of the most controversial features of Virginia government.
Ultimately, legislative analysts say, the simple rules change could be one of the most lasting consequences of the 1995 General Assembly elections. It eventually could produce a more conservative state judiciary, some Republican lawmakers believe.
Also, the change ``is the death of the caucus system,'' said state Sen. Joseph V. Gartlan Jr., D-Fairfax, who worked on the language that was adopted unanimously by the Senate.
``This may be the one real good thing that comes out of there being a 20-20 split,'' said former state Sen. William F. Parkerson Jr., a conservative Democrat from Chesterfield County who led an unsuccessful decade-long fight for a less- partisan approach to choosing judges.
While partisanship is not dead when it comes to naming judges, and there are suggestions that the new system may spawn controversies of its own, the change in process is significant.
How the system works: Under power granted by the state Constitution, the House and Senate will continue to elect judges. What is gone in the Senate is the time-honored practice of making judgeships a perk of the Democratic caucus.
As the state's majority party, Democrats have been informally bound in each chamber to vote as a bloc for the candidates who won in their closed-door caucuses. That effectively shut out Republican voices.
Disputes between the House and Senate Democratic caucuses were resolved behind closed doors without benefit of Republican opinion.
Under the new system, all the senators who represent citizens in a judicial district will meet to recommend a nominee when a vacancy occurs. Presumably, if the lawmakers agree, the full Senate will follow their recommendation. If they don't agree, individual senators can nominate other candidates and bring the debate that previously occurred in secret to the open venue of the Senate floor.
Several senators said Friday they are optimistic that the Senate shift will spawn a more cooperative approach to judicial selection in the House. But House Speaker Thomas W. Moss Jr., D-Norfolk, made clear that, for now, business-as-usual will prevail.
``What the Senate does is the Senate's business. What we do is our business,'' he said. ``No, the Senate rules will have no effect on the way the House selects judges.''
A shift from partisan politics: Several lawmakers raised potential problems with the altered system.
For instance, 44 incumbent judges - all picked under the old Democrat-controlled system - are up for re-election this year. Some of them sit in judicial districts where the local delegation is dominated by Republicans.
Several Republican senators, including Sen. Kenneth Stolle of Virginia Beach and Sen. Mark Earley of Chesapeake, said they have no intention of opposing Democrat-appointed incumbents who are doing a good job.
But there is no guarantee that all Republicans will agree with them, and what constitutes ``good performance'' is open to interpretation.
The new system will give substantially more sway to some individual lawmakers than others. For instance, in Fairfax County, where the local delegation has long practiced the bipartisan approach that the new Senate is adopting, 18 or so lawmakers from the House and Senate may be involved in judicial decisions.
But in a district such as the 21st Judicial Circuit, including Patrick and Henry counties and the city of Martinsville, there is only one senator: Democrat Virgil Goode.
Advocates of the change point out that - except in rare instances - the Democratic caucus has traditionally followed the advice of local Democratic lawmakers.
Then as now, they say, that gave rural lawmakers more power than urban ones in naming judges.
The best example of how the new system will work comes from Fairfax County, where the practice of working cooperatively has developed over the past two decades.
There, the local bar associations screen applicants and forward a list of qualified potential jurists to its legislators. The delegation interviews each candidate about issues such as the death penalty, criminal sentencing or property distribution, but not about political affiliation. Lawmakers vote by secret ballot and recommend a candidate to the General Assembly.
Some observers of the Virginia judiciary have recommended a process even further removed from partisan politics. The Judicial Council of Virginia, a body within the court system that recommends alterations to the judicial process, favors creation of a judicial nominating commission.
The council has endorsed a plan that would create screening committees of attorneys and residents in each judicial district. Those commissions would interview candidates and submit three names of qualified individuals to the legislature.
Similar proposals have been endorsed several times by the Senate but regularly die in the House Courts of Justice Committee, which is dominated by lawyers.
Parkerson, who championed such a commission, said the change adopted by the Senate could be a workable alternative. Given that politics will probably always touch the selection process, ``this would be a real good first step. Try this out and see what happens.'' ILLUSTRATION: At a glance
Judges in Virginia are appointed by the General Assembly - made
up of the Senate and the House of Delegates. They are not elected by
citizens.
Previously, the Democrat majority met behind closed doors to pick
judges. The House and Senate rubber-stamped those recommendations.
Now, local senators hold sway and Republicans will get a more
equal say.
The details
Local senators representing a judicial district will choose a
nominee and the full Senate is expected to OK their recommendation.
If the local senators can't agree, individuals can make nominations
openly on the Senate floor. The Democrat-majority House of Delegates
will continue to use the caucus system. Ultimately, however, both
houses must agree.
The longer-range picture
Some observers of the Virginia judiciary have recommended a
process even further removed from partisan politics and closer to
the public. The Judicial Council of Virginia wants to create
screening committees of attorneys and citizens to help select local
judges.
The local impact
A new seat in Virginia Beach Juvenile and Domestic Relations
Court.
Up for reappointment:
John Morrison, Norfolk Circuit Court.
Lydia Taylor, Norfolk Circuit Court.
Colon Whitehurst, Chesapeake Circuit Court.
Tom Ammons, Virginia Beach General District Court.
Blair Harry, Suffolk General District Court.
Fred Creekmore, Chesapeake Juvenile and Domestic Relations
Court.
James Flippen, Norfolk Juvenile and Domestic Relations Court.
Several Republican senators, including Sen. Kenneth Stolle of
Virginia Beach and Sen. Mark Earley of Chesapeake, said they won't
oppose Democrat-appointed judges who are doing a good job. But what
constitutes ``good performance'' is open to interpretation.
by CNB