If one only pays attention to the liberal media spin on McAuliffe’s most recent failed power grab, one might think that the General Assembly is doing something improper in selecting Judge Alston to the Supreme Court after the Governor appointed Judge Roush during the recess. This may be because people might think that Virginia works similarly to the Federal Government in judicial appointments. It does not. The Governor typically has nothing to do with judicial appointments in Virginia. This is all about a power-grab by the Governor that was destined to fail as McAuliffe ignored both the law and tradition. And McAuliffe knew that he was playing a game of political chicken with Judge Miriam Roush’s career – a game that he was bound to lose to the detriment of a judge’s distinguished career.
In Virginia, it is the legal and traditional prerogative of the General Assembly to appoint judges and justices, and the Governor plays almost no role. The Constitution is quite clear…
Article VI. Judiciary
Section 7. Selection and qualification of judges
The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years. During any vacancy which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the General Assembly. Upon election by the General Assembly, a new justice or judge shall begin service of a full term.
So the only time that the Governor has a role is the selection of a Supreme Court Justice is to select a temporary replacement justice in the event a vacancy occurs while the General Assembly is in recess. But the Governor usually doesn’t even have that power. Under Virgina Code Section 17.1-303, the General Assembly can pre-appoint Justices to term outside of session if they are aware of vacancy ahead of time. This means that the only power a Governor has is to appoint a temporary Justice to serve until the General Assembly meets to select the permanent justice in the rare occurrence that an unplanned vacancy occurs. Judge Roush was essentially appointed to be a substitute Justice while there was a temporary opening to ultimately be filled by the General Assembly.
Thus, the General Assembly is not removing Judge Roush from the Supreme Court. Judge Roush was appointed by Terry McAuliffe to a term that by law lasts only 30 days into the General Assembly’s next session then ends by operation of law. There is no provision in law or tradition that such an appointment, made without consulting the legislature, is entitled to any consideration by the General Assembly as they select the permanent Justice during the next General Assembly session.
Let us be clear. Judge Roush is not being removed. She is simply not being elected to the Supreme Court. Judge Roush was essentially a substitute Justice for a temporary term when McAuliffe appointed her. The argument that the General Assembly is ousting her is essentially like saying a temporary employee is fired when a permanent employee is hired to permanently fill the position.
It is true that the General Assembly has traditionally elected the Justices appointed by Governors. However, that has only occurred because the Governors have always consulted with the General Assembly before making such appointments. The only “unprecedented move in modern Virginia history” that occurred here is that McAuliffe had the audacity to play political chicken with a respected Jurist’s career by refusing to consult with the General Assembly prior to making his temporary appointment. It is the legal and traditional prerogative of the Legislature to select judges and justices in Virginia. McAuliffe knew this, but he decided to create a political showdown that he was destined to lose. And Miriam Roush is the victim of the Governor’s political arrogance.
Let me also say that I believe that Judge Roush would be a great Supreme Court Justice. I have practiced before her and she truly is one of the best judges in the Commonwealth. Judge Alston is even more qualified, however. In addition to his many recommendations from legal associations, trial experience, and experience on the Virginia Court of Appeals, Judge Alston has the specific qualification of not being a political pawn a Terry McAuliffe’s DC-insider-style scheme. The General Assembly is correct in rejecting McAuliffe’s power grab, and they are electing an even more qualified Jurist to fill the opening on the Supreme Court. I do hope that the General Assembly considers appointing Judge Roush either to the new vacancy that will arise in the Court of Appeals or, at least, place her back on the bench in Fairfax. She is a victim of Terry McAuliffe’s un-Virginia political machinations, and it would be a shame to have such a distinguished jurist off the bench.