Preston Bryant is a Republican who has represented Lynchburg and part of Amherst County in the Virginia House of Delgates since 1996.

Virginia has an enviable judiciary. It’s a stable branch of government whose inbred independence has kept it mostly aloof and indifferent toward the legislative and executive branches. That’s the way it should be.

This pretty much has been the case for centuries, despite judges being products of a wholly political system. In fact, it’s largely been the case despite most judges having gotten their jobs because of their political ties and involvement to one party or another at some point in their careers.

In Virginia, our judges are “elected” by the General Assembly, where both the House of Delegates and Senate must agree to each person nominated for a judgeship, whether for the juvenile and domestic relations court, the general district court, the circuit court, the court of appeals, or the Supreme Court.

The legislature can only put men and women on the bench while the General Assembly is in session. That’s in January and February, and sometimes part of March. When a vacancy occurs on the general district, circuit, or appellate courts when the legislature is not in session – usually a resignation or retirement, sometimes an untimely passing – filling that slot falls to the governor, as set forth in the state constitution. (The governor does not fill vacancies occurring in the juvenile and domestic relations courts; that authority is given to its local circuit court judges.) The governor’s appointment, however, is subject to the legislature’s approval when it’s next in session. (Interim appointments to the J&DR bench are subject to legislative approval, too.) So, yes, it’s possible for interim appointments to be removed from the bench, though historically that’s been rare.

Few tasks should be taken more seriously than giving someone the power to take away our freedoms and liberties. In Virginia, whether it’s a legislature or a governor giving someone that power, it’s being done with due skill and diligence.

During the 2002 General Assembly session, the house and senate jointly elected (or re-elected) 55 judges to all benches. But since the Republican-controlled legislature adjourned in early March, four big vacancies have occurred. Gov. Mark Warner, a Democrat, has filled those positions.

And it must be said that Warner has made admirable appointments. In each case, the General Assembly should approve his picks when it returns in January for the 2003 session.

A few weeks ago, Warner named federal prosecutor Randy I. Bellows to the circuit court in Fairfax County, filling a vacancy created by the retirement of Judge Henry E. Hudson, who’s leaving the state court to take a seat on the federal district bench. In order to assume his duties on the circuit court, Bellows is leaving his job as a high-profile senior prosecutor in the U.S. Attorney’s office. Warner knows that he’s found a man who promises to be a tough law-and-order judge. Bellows, until recently, was assisting in the prosecution of John Walker Lindh, the so-called “American Taliban,” and a couple years ago he was the lead guy in the prosecution of Robert Hansen, the FBI agent who doubled as a Russian spy and did unspeakable damage to our national security. Bellows is probably ready for life as a circuit court judge. He’s earned it.

In mid-summer, Warner filled two vacancies that occurred on the circuit court in Richmond. In one case, he elevated a veteran J&DR court judge, Richard D. Taylor, upon the retirement of Judge Thomas M. Nance. Anyone who has served on the juvenile and domestic relations court – arguably the most difficult bench there is – is well prepared to handle tough cases. Taylor is no exception. In the second case, Warner appointed Bradley B. Cavedo to replace Judge Learned D. Barry, who’d recently resigned after being nabbed and convicted for – get this – shoplifting.

It’s the Cavedo appointment that’s noteworthy, even apart from the weird circumstances prompting the vacancy. You see, Cavedo is an unabashed Republican. Though he’d been in private practice for many years in a Richmond firm with ties to both parties, he left that practice several years ago to be counsel to then Attorney General Mark Earley, a Republican. And in July when Warner tapped him for the bench, Cavedo was a deputy to current Attorney General Jerry Kilgore, also a Republican and the odds-on favorite for the GOP nomination for governor in 2005.

At the time of Cavedo’s appointment, Warner praised the Republican for his “strong commitment to public service during his tenure in the Office of the Attorney General” as well as his talent in the courtroom as a private-practice trial attorney.

But if you think Warner’s appointment of Cavedo is surprising for a Democratic governor, consider his appointment of D. Arthur Kelsey to the state court of appeals, the second highest court in Virginia.

In May, Judge Richard S. Bray chose to retire from the appeals court, where he’d sat for a decade. There was great speculation for quite some time on whom Warner would name. After all, this would be his first appointment to a marquee appellate slot.

So imagine the chins that dropped when he named Kelsey, a relatively young fellow who’d only been on the bench – the circuit court in Suffolk – for two short years. And further imagine the surprise, especially among Warner’s more liberal followers, given Kelsey’s hard-core conservative judicial philosophy.

Kelsey holds tightly – very, very tightly – to the belief that judges and justices are only interpreters of the law that’s written by those elected to write them. In a speech in May to the Portsmouth Bar Association, he impressed upon the assembled lawyers the imperative that judges be apolitical and strict constructionists.

Said Kelsey: “When we are called upon to interpret the Constitution in order to adjudge a specific case or controversy, we must repress any political or philosophical view we hold that is inconsistent with the plain meaning of the constitutional text or its historical context. If we fail to exercise this form of intellectual self-discipline, we will bumble down a path that, in the words of [U.S. Supreme Court] Justice Scalia, ‘proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.’ ”

Kelsey is a conservative’s conservative. Warner did not put him the state’s second highest court without a thorough vetting. The governor reportedly had copies of every single opinion ever written by the young judge.

Credit Warner, himself a lawyer who’s never practiced, for apparently having an inherent appreciation for a conservative judiciary. Credit him also for recognizing a keen legal mind when he meets one. Don’t be surprised if Kelsey ends up one day on the Supreme Court of Virginia.

It’s true that for most of the past century only those with a Democratic pedigree were asked for their robe size. Democrats, for all that time the majority party in the legislature, looked after their own. But that’s OK. Victors get the spoils.

Today, Republicans are the General Assembly’s majority, and it’s not surprising that those with ties to the Republican Party are increasingly finding their way to the court bench. Again, that’s ok. It’s our system, it’s worked pretty well, and no one needs to apologize for it.

But one’s political ties don’t always have to be the deciding factor in whether one gets to sit in judge of others. Indeed, it more and more is not. Today’s Republican legislators are routinely re-electing to the bench those who got there initially because of their Democratic lineage. Reform-minded Republicans are looking deeper than a would-be judge’s voting habits – they’re looking at such things as demonstrated ability, legal scholarship, ethics, demeanor, and judicial philosophy.

Warner, likewise, has shown a proclivity to do things differently when it comes to the judiciary. Merit obviously means something to him, too.

The governor has had four opportunities to date to prove that he’s looking for those who’ll make first-rate jurists. And he’s gone four for four. Bellows, Taylor, Cavedo, and Kelsey.

Warner’s judicious appointments deserve to be noted.

Your thoughts?

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The people versus the powerful in Northern Virginia

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Warner's California Ways

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