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Judicial Selection in Virginia: An Inherently Flawed Process

While the majority of states use some form of merit based selection, a system preferable to electing judges, only in Virginia and South Carolina do the state legislators select judges. After first being endorsed by the local delegation (local members of the Virginia General Assembly), a potential judge comes before the Courts of Justice Committee for a formal interview. A judicial interview is essentially a formality and usually lasts only a couple minutes. Typically, the only question a candidate is asked is, “Why do you want to be a judge?” Most judicial candidates, including incumbent judges, are then certified as qualified by the Courts of Justice Committee.  After a judicial candidate is certified they must be approved by a simple majority vote in both the House and Senate of the Virginia General Assembly in order to be seated.

Virginia’s current judicial selection process is inherently flawed and very political. Public perception is that it’s based largely upon whom you know and not what you know. The fact that much of the judicial selection process still goes on behind closed doors does not help alleviate concerns of impropriety.

Virginia initially relies upon the local delegation to endorse a judge. However, the local delegation is primarily a group of full-time attorneys who are part-time legislators, many of whom practice before the judges they must consider, an obvious conflict of interest. The local delegation members are elected officials and should represent the will of their constituents, but these attorney-legislators have a vested financial interest in maintaining the status quo and putting judges back on the bench regardless of their fitness to serve. Many attorney-legislators are, frankly, afraid to oppose a judge for fear of retribution, making it hard for legislators to represent their constituents and vote their conscience when it comes to judicial selection.

The current judicial selection process lacks transparency and citizen participation. Citizens are consumers of the courts who know best what is going on in the courtrooms of Virginia and they are the ones most affected by the judges that are selected. Subsequently, their voices ought to be heard and they should be allowed to participate in the selection process from start to finish. It’s troubling that much of the judicial selection process in Virginia still goes on behind closed doors.

Local delegation meetings, where the real debate over candidates takes place, are usually closed to the public. For example, the second judicial interview of Judge Gaylord Finch’s controversial re-appointment was not published on the General Assembly website even though VA FOIA requires all public meetings to be posted. Moreover, the interview took place on a Saturday morning at 8:15 at the Fairfax County Government Center; only two citizens managed to find out about it and were in attendance, but were made to leave by the acting chair after a short time, claiming they were going to discuss “personnel matters.” The local delegation also held several more closed door meetings to discuss Judge Finch’s performance. A month later, the local delegation held a public meeting and unanimously moved to certify Judge Finch in a total of about three minutes time.

On February 18, 2009, I petitioned the Virginia Supreme Court to exercise its original jurisdiction and compel the General Assembly to hold another judicial interview of Judge Finch, to properly notify the public pursuant to FOIA, to allow additional public testimony and to require that the state conduct a Judicial Performance Evaluation for this judge, as mandated by Virginia law. On March 10, 2009, the Virginia Supreme Court refused the petition. The public may never know on what basis this judge and others were endorsed by our legislators since many of these meetings were closed to the public and the committee members have refused to provide the Fairfax Bar Association evaluations and state Judicial Performance Evaluations to the public.  All we know is that House Courts of Justice Committee David Albo admitted publically that he cut a deal with Judge Finch to re-appoint him if he would retire by year-end.

I do not believe it is lawful for the Courts of Justice Committee to hold closed meetings to discuss the merits of a particular judge. Judges are public servants and as such are highly visible symbols of government. The “personnel” exemption to VA FOIA does not properly apply to judicial interviews, judicial performance evaluations or local delegation meetings. The judge is a public figure, the cases he/she hears are matters of public record (with the exception of Juvenile cases and sealed cases), there is no statutory authority under 17.1-100 or elsewhere to keep the judicial performance evaluations confidential and the judicial performance evaluations themselves do not contain personnel data such as social security numbers, marital status, home addresses and information that is truly “personnel” information.

The public should know on what basis a judge is selected.

Since it’s nearly impossible to have an incumbent judge removed and a retired judge can serve well into his geriatric years as a judge pro tempore, our current system amounts to a lifetime appointment for all intents and purposes. Our governor and president are subject to term limits, why not our judges as well? There ought to be term limits and mandatory retirement at age 70.

Our chief justice called for rehabilitation of troubled Virginia judges in his 2008 State of the Judiciary address. The solution is not Chief Justice Hassell’s program “Judges Helping Judges” a support/rehabilitation program designed to help Virginia judges who are dealing with alcoholism and other serious problems. The solution is removal of these troubled judges if their personal problems affect their judicial performance.

Currently nobody verifies the applications of judicial candidates, a problem that was brought into focus when two judicial candidates recently lied on their applications. Both denied they had disciplinary citations from the Virginia State Bar, when, in fact, they had. This came to light on February 20, 2009 at the joint Courts of Justice committee meeting, not because of a thorough review process but because, somehow, one of the committee members either had personal knowledge of the citations or got tipped off by a citizen. If Fortune 500 companies require a credit check, a background check, employment verification and a drug test for a new hire (more for an executive level hire), shouldn’t potential judges be screened at least that much?

We need uniformity in the judicial selection process. This year, only seven incumbent judges had a Judicial Performance Evaluation (JPE) done. Our law, 17.1-100, requires a JPE for each judge in the last year of his term and mandates that the JPE be a source of information in the judicial selection process. It’s unlawful to appoint judges without a JPE. It’s also unfair to the judicial candidates for some to have to go through the evaluation process and some to be able to bypass it all together.
Virginia’s current judicial selection process ultimately contributes to many of the problems with its judiciary. If Virginia’s judicial selection process begins with merit based selection and becomes completely transparent, there will be better judges seated, a stronger judiciary and a restoration of public confidence in the judiciary.

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