And the New Private Judicial Review Process Starts to Come Off the Rails

They set up the system. They sent out the forms to get lawyers to review the judges. They swore it would all be private, confidential, have no names attached, and never see the light of a public viewing.

And now, members of the General Assembly weigh in:

But lawmakers aren't sure the system is worth the strings that came attached: a strict order to keep the evaluations confidential.

Releasing the evaluations to the public is prohibited. That doesn't sit well with some.

"I've got the Supreme Court saying I can't do it and I'd be in contempt of court, and I've got my own personal commitment of being an elected member to my constituents that I feel I have a constitutional duty to share the information with," said Del. David Albo, R-Fairfax, at a meeting with court representatives and members of the House and Senate courts committees.

House Majority Leader Morgan Griffith, R-Salem, questioned whether the evaluations would be exempt from the state Freedom of Information Act.

"Because it's a part of the public process of re-election, that's why I don't believe that any personnel exemption would apply," he said.

In other words, the Supreme Court may have issued an unenforceable order.

And, even if the Supreme Court's order holds up publicly, might there not be untraceable leaks?

When this came about, I balked. First of all, the smaller the jurisdiction the less likely to produce truthful replies. After all, in the many rural jurisdictions in Virginia wherein there are 3-5 attorneys in the whole county (or less) and everybody knows everybody, the judge is going to have a good shot at finding out who said what about him. If the judge has a terrible, tyrannical god-complex while on the bench, but is a swell guy when he goes before the General Assembly, the young idealistic attorney who told the truth is going to be in a heap of trouble when the General Assembly votes the judge back into office.

On the other hand, in jurisdictions where lawyers feel there is a sufficient number of attorneys that they won't be identifiable or don't care because there are 8 judges and you only appear in front of the bad one every 6 months or so, my concern shifts. I'm more worried about cherry picking. Let's assume 200 evaluations are submitted: 160 basically say Judge Smith is average, 20 say he is spectacular (the guys who graduated with him 20 years ago from W&L), and 20 say he is the Devil incarnate (the Jaywalking Defense specialists who think he is biased because of his 75% conviction rate). If there is a heated battle in the General Assembly over who is going to be seated next in this judicial circuit I foresee these letters being used as weapons on both sides, with everyone using the parts most favorable to their position and ignoring any trend in the entirety of the evaluations.

The Supreme Court is trying to stop this, but I have to say that I think the General Assembly is going to win if a showdown comes. After all, it writes the laws.