Today in Richmond, General Assembly committees interview prospective judges.
This is such a routine proceeding by Virginia standards that we don’t appreciate just how unusual this really is. We’ll get to that momentarily.
For now, attention in this part of the state is focused on two particular vacancies — a circuit court judgeship in Montgomery County and another circuit court opening in Roanoke.
The former is open because the House of Delegates has declined to reappoint Marc Long to a second term. This highlights two important aspects of Virginia’s judicial system: Judges serve specific terms and they are chosen by the state legislature; the governor has no role except in the limited case of Supreme Court vacancies when the General Assembly is out of session. Even then, the governor can make only a temporary appointment. Then-Gov. Terry McAuliffe and Judge Jane Rousch learned in 2016 just how temporary that temporary appointment can be when the General Assembly asserted its prerogative to pick someone else.
That’s very different from how the federal system works. Judges on the federal bench are nominated by the president and confirmed by the Senate — for lifetime appointments. In some ways, the most lasting legacy of any president is on the federal bench. Even Jimmy Carter’s influence lingers — there’s still one federal judge he nominated on active status (Carmen Consuelo Cerezo in Puerto Rico.)
But back to Virginia: Long was first appointed to the bench in 2005 when Republicans controlled the General Assembly; Democrats so opposed his appointment that they refused to vote for him — judicial controversies are now the norm at the federal level but that lack of unanimity remains unusual in Richmond. There’s another way to look at the Long case, though: He scored poorly in some key sections of his performance reviews. Judges get reviewed anonymously by lawyers and others who work in the court system and Long received low scores for what might be considered the judicial equivalent of a good bedside manner. Long’s case shows that those reviews sometimes actually matter. Democrats — specifically, Del. Chris Hurst, D-Montgomery County —get the credit or blame for blocking Long’s reappointment but the rationale is hardly partisan, or unprecedented. In 2001, then-Del. Morgan Griffith, R-Salem, denied reappointment to then-Circuit Court Judge Roy Willett for essentially the same reasons.
The fact that we’re singling out specific legislators also underscores another unique aspect of Virginia’s judicial selection process — the great deference given to legislators to decide who gets to be a judge in their respective districts. That brings us to the other open judgeship, the one in Roanoke created by the retirement of Circuit Court Judge William Broadhurst. The Roanoke Valley’s two largest legal organizations — the Roanoke Bar Association and the Salem/Roanoke County Bar Association — both endorsed Leisa Ciaffone, currently a juvenile and domestic relations judge. However, state Sen. John Edwards, D-Roanoke, has said he intends to support Frank Rogers, another juvenile and domestic relations judge. His decision matters in two ways — the vacant judgeship is in his district and he’s also chairman of the Senate Judiciary Committee.
Edwards’ backing of Rogers has churned up controversy. Four years ago, when there was another judicial vacancy, Ciaffone was also in the running. Then, she was endorsed by the Salem-Roanoke County Bar Association while the Roanoke Bar Association recommended Chris Clemens. Roanoke Valley legislators decided to appoint Clemens but signaled that Ciaffone was in line to get the next vacancy. Edwards and state Sen. David Suetterlein, R-Roanoke County, even took the unusual step of issuing a joint statement that said: “We believe that Judge Ciaffone will make an excellent Circuit Court Judge in the future and intend to support her candidacy for the next vacancy.” Edwards now says he doesn’t remember that statement, although it’s been there in black-and-white since it was first published in The Roanoke Times on Jan. 2, 2016.
We don’t know what’s going on behind the scenes, but here’s how it looks from the outside: Ciaffone has been a J&D judge since 2013; Rogers since 2014. Here’s a situation where the woman has more experience than the man. She’s been endorsed by both bar associations; he hasn’t been. Yet he’s in line to get the job. Some might say that’s the very definition of a “glass ceiling” and find it odd that Democrats appear poised to perpetuate such a barrier. There’s only been one woman to be a circuit court judge in Roanoke history — and she retired nearly twenty years ago.
Whatever the circumstances surrounding this judgeship, the more unusual thing here is how Virginia picks its judges. According to the Brennan Center of Justice, only two states have judges selected by the state legislature — Virginia and South Carolina. Most states elect their judges — 29, in fact. By law, 20 of those are “non-partisan” elections; the other nine allow for parties to nominate judicial candidates. Nine states — entirely in the Northeast — have their governors appoint judges. The remaining 11 states — mostly in the Midwest and Rocky Mountains — have hybrid systems. Typically those involve the governor picking a nominee recommended by a selection panel, sometimes pending confirmation by the state legislature. Is one system better than another? You could provoke a good philosophical argument for or against any of them. The argument for electing judges: Democracy! It’s a good thing! The argument against: Sometimes the right decision isn’t always a popular one. Do we want judges engaged in tawdry politics?
All we can say for certain is that when the General Assembly goes through the process of interviewing judicial candidates today, it’s a scene we’d only see in Columbia, South Carolina. We also can say this: Virginia has fewer female judges than most other states — 25%. The National Association of Women Judges says the national average is 34%. Only seven states have fewer female judges than Virginia — Arkansas, Alabama, Mississippi, Idaho, Tennessee, North Dakota and Wyoming. The state with the most female judges is Minnesota — 48%. Don’t blame Virginia’s system of judicial selection for the lack of women on the bench, though. In South Carolina, which has the same system, 42% of the judges are women, ranking the Palmetto State’s bench as one of the most diverse in the country. So why does Virginia rank so low? And will any of that change today?