Judging judges

Virginia is one of only a couple states in which the legislature selects judges. Since judges have set terms (varies by court) with no limits on the number, the legislature also reappoints judges. In cases where the legislature fails to fill a vacancy, or if a vacancy occurs when the legislature is not in session, the governor or circuit court judges (depending on the vacancy) makes the appointment.

Giving legislators this much power over the Virginia judicial system seems to violate our cherished separation of power and checks and balances. The lengthy and clumsy process can also means judgeships are empty for months forcing courts to use substitute or retired judges, delays in cases being heard, and dockets to burst. And justice for all?

The process also creates a potentially unhealthy local political dynamic in which judges get appointed based more on connections with local politicians and bar associations than on experience and expertise. Lawyers, who have rarely seen the inside of courtroom are often appointed to a judgeship where they know little of procedures and processes. Most often, this occurs at the General District and Juvenile & Domestic Relations District courts because they are "entry level." Judges of circuit courts and appellate courts are more often chosen from sitting judges who have a track record. District courts handle most of the cases affecting everyday folks - family and juvenile issues, traffic, civil disputes, minor crimes, etc.

Lest you think there is a shortage of lawyers wanting to be judges, think again. Generally, when a retirement or vacancy is known in advance, there is lots of behind the scenes jockeying to line up political support. Promises are made and campaign donations are probably tallied up. Why would a lawyer take a likely pay cut to become a judge? Perhaps power? Perhaps a change? Perhaps to tap into the Virginia Retirement System which fast tracks judges to full benefits much faster than state employees, teachers, and most others covered by the program.

This year, with control of the General Assembly divided between the parties, vacancies went unfilled. Governor Tim Kaine then made the appointments. Now, House Republican Leader Morgan Griffith is complaining that the governor didn't get input from the House GOP caucus. Of course, Griffith forgets that the hard partisan line taken by the House is partly responsible for the deadlock that resulted in the governor making the appointments. Duh!

Any change to the judicial selection process would require an amendment to the Virginia Constitution, a lengthy and difficult process with many political roadblocks. Models can be found in other states that either elect judges in a nonpartisan elections (nonpartisan but still very political) or have a nonpartisan judicial selection commission. In the federal system judges are appointed, for life, by the president with approval from the Senate. This rooster prefers a nonpartisan commission.

As The Roanoke Times notes, convincing the General Assembly to change the judge selection process will not be easy - politicians rarely want to give up power. But, taking politics (as much as possible) out of what should be an independent branch of government is a good thing (no matter what the politicians say). Hopefully this year's impasse will prompt those very politicians to look at meaningful reforms. Maybe it is an issue we can bring to the forefront in 2009 when we elect a governor, lieutenant governor, attorney general, and all 100 delegates.