Should Virginia move to a merit-based system of electing judges?
Reform would select best qualified judges, not best connected
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
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.