Should Virginia move to a merit-based system of electing judges?

Reform would select best qualified judges, not best connected

Deeds

By Creigh Deeds

Deeds represents the 25th District in the Virginia Senate and is a former member of the Senate Courts of Justice Committee and the House Courts of Justice Committee. He was the Democratic candidate for governor in 2009.

Virginia, home of the oldest legislative body in the Western Hemisphere and the mother of presidents, has a flawed process for selecting judges. Virginia is one of two states where election of the judiciary is entirely a legislative prerogative. While the process, by and large, has produced good judges, it is rife with subjective considerations that have little to do with whether the nominees are the best qualified to serve.

During the 1990s, two members of the House of Delegates led a charge to reform the process. Republican Andy Guest and Democrat Whitt Clement introduced bills to require more public input and a more objective examination of the qualifications of judicial candidates. Year after year, the bills were introduced, and year after year, they failed. Now is the time to resurrect the idea.

In 2012, one potential appointee for a district court judgeship garnered significant discussion on the floor of the House of Delegates. All who listened to that post-midnight debate had to wonder whether they were witnessing the vetting of a judicial candidate or a Salem witch trial. This year, there was discussion on the floor of the Senate about whether judicial vacancies would actually be filled. The argument was driven not by the nominees or their qualifications, nor about whether the positions should be funded, but by the fact that political expediency required someone other than the General Assembly to make the appointments. Talk about transparency.

The decision about creating and/or filling judgeships should be based upon objective criteria such as caseload statistics, population and geographic area served. The focus on who fills those judgeships needs to revolve around experience, temperament and merit.

Virginia should join the majority of states that have judicial candidates evaluated by local and state bar organizations. Lawyers familiar with a candidate’s abilities and temperament should have input in this critical decision. The process also should allow more citizen input, not only at the judicial hearings before the courts of justice committees, but at the level of nominating candidates.

Electing judges is serious work. For many Virginians, their one day in court is their sole opportunity not only to obtain justice but to see how government and our judicial system work. They deserve nothing less than assurance that the best qualified, not the best connected, are selected for the bench.

Thomas Jefferson, while minister to France during the Constitutional Convention, wrote to James Madison that he was most impressed by the independence of the judiciary established in the Constitution. More than two centuries later, we still do not live up to this expectation. We need to jealously guard its integrity in order to ensure the public that justice will be done. We can do better.

Current process is preferable to all others

Cline

By Ben Cline

Cline represents the 24th District in the Virginia House of Delegates. He is a member of the House Courts of Justice Committee and chairs the House Courts Subcommittee on Judicial Appointments. He is an assistant commonwealth’s attorney for Rockingham County and Harrisonburg.

The Virginia Constitution provides that “the judges of all courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” The responsibility to appoint the judges of the commonwealth is one of our most important duties as elected representatives of the people. Our system of justice is based on the rule of law, and as lawmakers, we recognize that the citizenry must have complete confidence in the qualifications, fairness and impartiality of the judges appointed to the bench. Without that confidence, our system of justice and, in turn, our republican form of government, will be consigned to the dust bin of history.

Most members of the House and Senate, therefore, take great care in selecting well-qualified judicial candidates on the basis of merit. For example, most would agree that the Roanoke area delegation to the General Assembly has cooperated amicably for many years to ensure that its appointments to the various courts have been a superior group of men and women. Judges in other areas of Virginia enjoy the same reputation. In addition, the current process is characterized by public access to and participation in the interview process by the courts of justice committees.

Nevertheless, complaints with the current system have surfaced from a few corners, most notably among liberal elites and newspaper editorial boards. The complaint heard most often is that the current process is too messy, too rancorous and too discordant. In short, the complaint is that the process is too political. But politics are only a symptom of the democratic nature of the current process. The authors of the Virginia Constitution created a public and highly accountable system in which the people electing the judges are themselves judged and elected (or rejected) by the people. In such a system, some politics are inevitable.

The critics would prefer that power be taken away from the people and instead given to an unelected bureaucracy known as a selection commission. They argue that this change would remove politics from the selection process. In actuality, it would hide the politics and weaken the accountability and transparency of the current process that make it superior to alternative methods.

In a 1947 speech to the House of Commons, British Prime Minister Winston Churchill said, “Democracy is the worst form of government except all those other forms that have been tried.” His point was that while often flawed, a democratically elected government always is preferable to the alternative, whether a monarchy, a dictatorship or a military junta.

The same can be said for Virginia’s current practice of assigning judicial selection to the General Assembly. While occasionally messy, often cantankerous, and always political, our current system of appointing judges by the democratically elected representatives of the people is preferable to all other systems.

By George F. Will

Two of the three most infamous Supreme Court decisions were erased by events. The Civil War and postwar constitutional amendments effectively overturned Dred Scott v. Sandford (1857), which held that blacks could never have rights that whites must respect. Plessy v. Ferguson (1896), which upheld legally enforced segregation, was undone by court decisions and legislation.

Korematsu v. United States (1944), which affirmed the president’s wartime power to sweep Americans of disfavored racial groups into concentration camps, elicited a 1988 congressional apology. Now Peter Irons, founder of the Earl Warren Bill of Rights Project at the University of California, San Diego, is campaigning for a Supreme Court “repudiation” of the Korematsu decision and other Japanese internment rulings.

A repudiation would be unprecedented, but an essay that Irons is circulating among constitutional law professors whose support he seeks is timely reading in today’s context of anti-constitutional presidencies, particularly regarding war powers.

On Feb. 19, 1942, President Franklin Roosevelt authorized the military to “prescribe military areas … from which any or all persons may be excluded.” So 110,000 Americans of Japanese ancestry, two-thirds of them born here, were sent to camps in desolate Western locations. Supposedly, this was a precaution against espionage and sabotage. Actually, it rested entirely on the racial animus of Gen. John DeWitt, head of the Western Defense Command.

Using government records, Irons demonstrates that because senior officials, including Solicitor General Charles Fahy, committed “numerous and knowing acts of governmental misconduct,” the court based its decision on “records and arguments that were fabricated and fraudulent.” Officials altered and destroyed evidence that would have revealed the racist motives for the internments. And to preserve the pretext of a “military necessity” for the concentration camps, officials suppressed reports on the lack of evidence of disloyalty or espionage by Japanese- Americans.

The 1943 “Final Report” on Japanese “evacuation,” prepared under DeWitt’s direction and signed by him, said a Japanese invasion was probable, that “racial characteristics” of Japanese- Americans predisposed them to assist the invasion, and that is was “impossible” to distinguish loyal from disloyal Japanese-American citizens, if there were any: “The Japanese race is an enemy race and while many second- and third-generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”

When War Department officials objected to such assertions and demanded revisions, DeWitt ordered all copies and records of the original report destroyed, but one copy escaped DeWitt’s cover-up. The court, however, never saw it, remaining unaware of the racist basis of the theory of internment’s “military necessity.”

Also kept from the court was a report, prepared for the Chief of Naval Operations and made available to DeWitt, estimating potentially disloyal Japanese as just 3 percent of the Japanese-American population, and declaring that these were “already fairly well known to naval intelligence” and could be quickly apprehended, if necessary. The suppressed reports’ conclusion: “The entire Japanese problem has been magnified out of its true proportion, largely because of the physical characteristics of the people (and) should be handled on the basis of the individual … and not on a racial basis.”

Fahy ignored an assistant attorney general’s warning that not advising the court of this report would constitute “suppression of evidence.” Furthermore, DeWitt justified internment because “the interception of unauthorized radio communications” emanating from along the coast “conclusively” accounted for Japanese submarine attacks on U.S. ships. The FBI, however, reported “no information” of “any espionage activity ashore or … illicit shore-to-ship signaling.” The Federal Communications Commission investigated “hundreds” of reports of suspicious radio communications but found nothing to confirm DeWitt’s accusations. Yet Fahy in his oral argument assured the court he could guarantee the veracity of “every line, every word, and every syllable” of DeWitt’s report, and that “no person in any responsible position has ever taken a contrary position.”

The Korematsu decision reflected perennial dangers: panic, and excessive deference, judicial and other, to presidents or others who would suspend constitutional protections in the name of wartime exigencies. It is less important that the decision be repudiated than that it be remembered.

Especially by those currently clamoring, since Boston, for an American citizen — arrested in America, and concerning whom there is no evidence of a connection with al-Qaeda, the Taliban or other terror network — to be detained by the military as an “enemy combatant.” The Korematsu case is a reminder that waiving constitutional rights is rarely necessary and rarely ends well.

 Will is a columnist with the Washington Post Writers Group.

The U.S. judicial system should remain intact as the case against Dzhokhar Tsarnaev moves forward.

It should give all Americans satisfaction to know that the suspect in the Boston Marathon bombing was identified, tracked down and captured Friday thanks to law enforcement efforts led by the Federal Bureau of Investigation but with ample help from Boston’s own police force.

The next step must be for Dzhokhar Tsarnaev to be tried before a jury in federal court.

President Obama on Monday rightly resisted rash calls for Tsarnaev to be treated as an enemy combatant or even hauled off to the Guantánamo Bay detention camp.

Due process is not an inconsequential element of the U.S. judicial system. It lies at the core of our society’s values, values generating such antipathy that evildoers last week murdered innocent women and a young child and injured many more in soulless violence. We must respond by reaffirming our core beliefs, not disposing of them in a boiling rage.  . . .

Continue reading this editorial

By Esther J. Cepeda

History is littered with examples of innocents who were punished for crimes they didn’t commit.

You don’t have to think very hard to remember someone who made headlines for an atrocious act only to find out years later the person didn’t do it.

When such a thing happens, we usually shrug our shoulders and say, “That’s too bad,” and try not to think about the destruction of the wrongly accused’s life. You might think, “There’s nothing I can do about it.”

But there is something you should do: Take a couple of hours and peer inside the courageous survival of a group of people who went through such a nightmare. Watch Ken Burns’ new film “The Central Park Five,” which will air on PBS stations across the country on April 16.

Continue reading.

Cepeda is a columnist with the Washington Post Writers Group.

By George F. Will

From Tom Paine’s “Common Sense” to Harriet Beecher Stowe’s “Uncle Tom’s Cabin” to Martin Luther King’s “Letter from Birmingham Jail,” American history is replete with examples of printed words accelerating social justice. Still, from Mathew Brady’s 1862 photo exhibit of “The Dead of Antietam” to the televised fire hoses and police dogs in Birmingham, Ala., in 1963 to the cameras that brought Vietnam into American living rooms, graphic journalism has exercised unique power to open minds and hence shape history. It may do so Tuesday evening when PBS broadcasts “The Central Park Five,” a meticulous narrative of a gross miscarriage of justice.

There were abundant dystopian aspects of New York City in the 1980s when crime, crack and AIDS produced a perfect storm of anxiety about the fraying social fabric. This was the context — a city on edge — when on April 19, 1989, a 28-year-old white woman who worked on Wall Street went for a jog after dark in Central Park. She became a victim of what was immediately called “wilding,” a word probably unknown by the four blacks and one Hispanic, ages 14 to 16, who were arrested and charged with raping her and beating her nearly to death.

Continue reading.

Will is a columnist with the Washington Post Writers Group.

By Timothy J. Heaphy

In June of last year, I sat on a metal chair in the federal prison located in Lee County. Across from me sat Derek, whom I had prosecuted for drug crimes a decade earlier. Derek and I talked about his job skills and his résumé in a mock job interview, part of a daylong re-entry program.

Derek was one of the approximately 13,000 Virginians who returned home from a federal or state prison in 2012. Skills like the job interviewing we practiced are critical to Derek’s ability to stay off the streets and out of prison, and to start his life over again as a taxpaying, law-abiding citizen.

The majority of those incarcerated are not violent, dangerous criminals, but rather nonviolent offenders serving time for drug, fraud and other offenses. What can men and women like Derek expect when they come home?

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Heaphy is United States attorney for the Western District of Virginia.

Does Virginia’s sex offender registry need reform?

Don’t believe every scary statistic

By Mary Devoy

Inflammatory propaganda — like repeatedly using the word “predator” along with skewed statistics, usually by those seeking re-election, higher office, organizational donations and grants or securing criminal justice jobs — is, sadly, the norm.

Last week, this status quo was perpetuated in the opposing viewpoint, and instead of proposing solutions, clarification is required.

A patently false claim was made of 43 percent recidivism for registered sex offenders. This demonstrates either ignorance or a blatant attempt to obfuscate fact.

Forty-three percent is the national overall recidivism rate of all offenders for various offenses, including administrative and technical probation violations — possibly the inability to retain employment or to pay court fines or child support. It could be drug-, alcohol- or even traffic-related, but is not specific to registered offenders or sexual offenses.

Facts:

n Virginia’s recidivism rate for all convicts within three years of release is 28.3 percent; a fraction would be registered sex offenders, and then another fraction of that would be for a new sexual offense.

n The national recidivism rate for all registered sex offenders committing a new sexual offense within three years is 2.5 to 5.3 percent, second lowest of all crimes.

n Ninety percent of sexual assaults are perpetrated by a family member or acquaintance, neither by a stranger nor someone on the registry.

But these facts aren’t scary enough; they don’t support a dire need for a public list of shame, a lifetime of restrictions and the millions of dollars spent to maintain and inflate it annually.

A popular phrase among lawmakers is “the devil is in the details.” This certainly applies to last week’s counterpoint statement.

An artistically arranged omission of fact or twist of percentages to intentionally force a point is otherwise a lie. Do your homework, question lawmakers, confirm their numbers. This doesn’t make you soft on crime; it’s called social — maybe even moral — responsibility.

Bureau of Justice Services

http://bjs.gov/index.cfm?ty=tp&tid=17

http://bjs.gov/index.cfm?ty=dcdetail&iid=270

http://bjs.gov/index.cfm?ty=pbdetail&iid=1582

PewCenter

http://www.pewstates.org/research/reports/state-of-recidivism-85899377338?p=1

http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/sentencing_and_corrections/State_Recidivism_Revolving_Door_America_Prisons%20.pdf

VA DOC Research and Forecast Unit: Recidivism at a Glance Brochure July 2012:

http://www.vadoc.state.va.us/about/facts/research/recidivism/recidivism-at-a-glance-2007-2011.pdf

DeVoy, of Mechanicsville, has been a volunteer advocate for data-driven reform of Virginia’s sex offender registry and laws since 2008.

Sex crimes are among the most heinous

By Bill Stanley

Mary Devoy would have us believe that the sex offender registry doesn’t work because the list of offenders consists of primarily 18-year-olds who had consensual relations with their 16-year-old girlfriends; this is simply not the case, and is the rare exception, not the rule.

The offenses for which a person is required to register are serious, and such requirement is triggered only when the sex offender is convicted beyond a reasonable doubt after trial by a judge or jury. Rape, abduction with the intent to defile, forcible sodomy, object sexual penetration, aggravated sexual battery, taking indecent liberties with a minor when in a supervisory or custodial relationship, possession, production or distribution of child pornography — these are not lower-tier crimes; rather, they are some of the most heinous crimes that can be committed against another human being.

The registry reasonably informs the police and public of where those who chose to hurt others in this sexually deviant way are located when they are returned to our communities. Here, a balance must be struck between keeping our communities safe, with the hope that offenders become successful members of society after they have paid their debt.

For Devoy to say that Virginia’s registry has “dehumanized a whole class of society,” turning sex offenders into “public spectacles, monsters” completely misses the point. For it is not the registry that creates the offenders’ predicament, it’s the horrendous sex crime that they committed that makes it that way.

The old adage “don’t do the crime if you can’t do the time” rings true here as well — if you don’t want to be on a public registry of sex offenders here in the commonwealth of Virginia, don’t commit a sex offense crime against another human being.

Stanley, of Franklin County, is state senator for the 20th District and Republican majority whip. He has sponsored legislation in the General Assembly to ensure Virginia’s compliance with the federal Sex Offender Registration and Notification Act.

Roanoke lucked out with two qualified judges, but the election system needs reform.

Kudos to the Roanoke Valley’s General Assembly delegation for eventually coming together this week behind two capable candidates to fill critical judgeships in local courthouses.

And an extra round of applause for state Sens. John Edwards, D-Roanoke, and Ralph Smith, R-Bedford County, who stood up against Wednesday’s late-night attempt by Senate Republican leaders to scuttle the election of a circuit judge in the 23rd Judicial Circuit.

Continue reading this editorial.

by Keith Johnson

We see another governmental assault on Christian faith. On March 27, U. S. District Court Judge Michael Urbanski ruled it is unconstitutional for the Pittsylvania County Board of Supervisors to pray a Christian prayer before meetings.

This and other court rulings of this nature seem to overlook an important phrase in the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Read more.

Johnson lives in Boones Mill.

Wikimedia Commons

George Packer, who has spent much of his career covering foreign conflicts in Iraq and Sierre Leone for The New Yorker, turns his attention to domestic trends in his most recent commentary for the magazine.

On two key fronts, he notes, liberals are making substantial gains in public opinion.

Gay marriage: Polls show a majority of Americans now support same-sex marriage. (Virginians are evenly split on the issue, although that’s still a notable change after state voters seven years ago amended the state constitution to not only ban same-sex marriage and civil unions but to strip gay Virginians and their partners of any recognition or rights.)

Immigration: Between 2006 and 2011, Gallup polls found that more Americans wanted to stop illegal immigrants from entering the U.S. than wanted to offer a path to citizenship for those always living here. Last year, the balance shifted in favor of legalization. A Pew poll last month showed more than two-thirds of respondents favored reforms to help undocumented workers obtain legal status.

Republicans are clearly taking note of the shifting electorate. Several have spoke out in favor of gay marriage, and a group of GOP members of Congress are now working on immigration reforms after rebuffing previous efforts by both George W. Bush and Barack Obama. Packer writes:

These dramatic movements are the culture-war equivalent of the spring and summer of 1918, when both the German and Allied armies suddenly advanced dozens of miles across France after years of stalemate in the trenches. According to the Venn diagram of polls on both issues, if you’re over fifty, white, male, vote Republican, didn’t get past high school, and live in a rural area of Kansas or Kentucky, the chances are high that you’re not a bit happy about it.

If it sounds like Packer is gloating, he’s not, and he warns liberals to avoid that temptation, noting that “the wheel of history never stops turning, and no majority is permanent.”