Virginia Supreme Court fight is bad for justice and for women.

The Virginia Legislature Is About to Oust a Well-Respected Female Judge Just to Spite the Governor

The Virginia Legislature Is About to Oust a Well-Respected Female Judge Just to Spite the Governor

The law, lawyers, and the court.
Jan. 14 2016 5:55 AM

Supreme Tantrum

The Virginia legislature is about to oust a well-respected female judge just to spite the governor.

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Virginia Supreme Court Judge Jane Marum Roush and Gov. Terry McAuliffe.

Photo illustration by Lisa Larson-Walker. Photos by Bill O'Leary/Washington Post via Getty Images and Win McNamee/Getty Images.

Republicans in the male-dominated Virginia legislature stand poised to demonstrate, yet again, that when it comes to gender politics in the state, tone-deaf is the new normal. As the legislative session for the part-time legislature opens this week, the plan is to remove a respected and accomplished female jurist, after five months served on the state supreme court, for purely political reasons that mostly amount to screwing over the governor, Terry McAuliffe. To do so would be a triumph for the sort of nanny nanny boo-boo partisanship that pervades our times, but it would also strike an irreparable blow to judicial independence and reinforce the idea that the good old boys of the commonwealth are beyond clueless when it comes to appearances, public office, and gender.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Virginia is nearly anomalous among the states in that its constitution affords the General Assembly the power to elect judges at all levels of the state court system. The governor has the authority to fill a vacancy with a recess appointment when the legislature isn’t sitting, which in Virginia is often: Legislators meet for only 46 days in odd-numbered years and 60 in even-numbered ones. But the legislature must affirm that appointment when it reconvenes. It intends to do nothing of the sort this session, even though this would be the first time since 1901 that the General Assembly will fail to elect the governor’s interim pick to a full 12-year term. Revenge, it seems, will be worth the blow to the prospect of a nonpartisan, independent judiciary, a reputation the Virginia Supreme Court has fought hard to earn.

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As Carl Tobias explains in the Washington Post, last July, McAuliffe appointed Judge Jane Marum Roush, a former circuit court judge, to fill a vacancy on the Virginia Supreme Court left by Justice LeRoy Millette Jr., who retired. This was a temporary appointment, which would expire 30 days after lawmakers reconvened. Roush was first recommended to McAuliffe by a Republican lawmaker, is a universally admired 22-year veteran of the judicial branch with a reputation for being tough on crime, and presided over the trial of Washington-area sniper Lee Boyd Malvo as well as that of a notorious triple murderer. She is also the only judge from blue Fairfax County on either Virginia’s Court of Appeals or Supreme Court.

McAuliffe, perhaps in an effort to sidestep the secretive and partisan nature of judicial elections, appointed Roush in July without properly conferring with the Republican leadership. It was a misstep. Tantrums ensued.

In August, immediately after the appointment, Republican lawmakers attempted to oust Roush in a special session, but they failed to garner enough votes to do so. Roush was at first invited to the hearing, then uninvited. Nobody wanted to interview her. Republican House Courts of Justice Chairman Dave Albo of the 42nd District explained at the time that he ultimately disinvited Roush because it would not be “classy” to subject her to a “fake interview.” Republicans would determine Roush’s fitness to judge without hearing from her in person. Republican leadership, though, opted not to evaluate her fitness at all and instead threw their support behind another judge, Virginia Court of Appeals Judge Rossie Alston Jr., who is black. This led to a grotesque identity politics smackdown over the summer wherein Democrats argued that blocking Roush would prevent a qualified woman from taking the Supreme Court seat, as Republicans argued that any vote against Alston would prevent a highly qualified black judge from taking the bench.

Nobody has an argument against Roush’s credentials. They’re just mad at the governor. When the governor reappointed her in a second recess appointment in September, their beef with her became that she should not have accepted what they claimed was an unconstitutional reappointment. But the real complaint remains the same as it always was: She is perfectly fit but shouldn’t have been appointed without consultation.

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Roush’s new temporary term will expire this February unless she is elected. The Republicans in the legislature, which is now in session, say that won’t happen, and it looks like they are right.

The last time in Virginia history a justice was bounced for purely partisan reasons was in 1901. Every sitting justice appointed in a recess by the governor has been elected to the Supreme Court after the General Assembly reconvened, totaling 31 appointments in a row, which included the court’s first black member and its first woman. Of course McAuliffe could have handled the appointment more deftly, but it’s bizarre to unseat a well-respected Supreme Court jurist over a hissy fit. And if the objections are not about Roush’s merits but about hurt feelings, it seems like a double hit to the integrity of the judicial branch.

It is beyond deranged to allow the legislature to elect state Supreme Court justices. Only Virginia and South Carolina do so. It is a recipe for disaster and a karate chop to the very notion of an independent judicial branch. But, setting that aside, this particular psychodrama is being brought to you from a Virginia legislature that comprises only 17 percent women. That means that beyond the question of what has happened, the question of how awful it appears looms large. As the Washington Post’s Petula Dvorak has detailed, 24 of the 140 legislators in the commonwealth are female. It’s as if it never stopped being the ’80s here. And that means, as Dvorak noted last fall, that when a bunch of men boot one of the three women off a seven-member court for no reason other than petulance and pettiness, it’s doubly unfair. Women comprise 51 percent of the population, but they only represent 29 percent of state Supreme Court seats. And this current situation is exactly the kind of smoke-filled backroom, tit-for-tat politicking that keeps women from putting their names forward for such seats and keeps them from being supported and protected in male-dominated legislatures. None of this started out as a fight over gender parity, but now that it looks like one, you can be sure women will notice.

You can sneer that McAuliffe is cynically framing Roush’s unseating as part of a “war on women,” but cynically dumping a highly qualified and respected jurist, who gave up her own judicial seat to serve on the high court when she was asked, looks even worse. McAuliffe may have been extremely gauche. The Republicans in the House just look vindictive. The entire judiciary becomes tainted, and to what end? A black eye for the governor and a lasting blow to the independence of the judiciary? There will (hopefully) come a day when women will stop counting the number of judges and justices and comparing it regretfully with their numbers in the general population. But that day hasn’t come, and when highly qualified women are taken out of prestigious positions because an old boys club has morphed into a small boys sandbox, the voting women of Virginia may not be pleased.