02 April 2009

Virginian Judicial Selection

There is no truly good way to select judges. There are direct elections, which everyone is concerned about because they cause the judge to worry about votes more than the law. There are political selections with life tenure, which lead to a sudden lack of memory and inability to discuss legal theory on the potential judge's part until after the nomination process is complete and thereafter leave the judge/justice entirely without any without any check when he turns out to be an incompetent or worse. There's judicial selection by committee, which just screams "behind closed doors, good ole boy" (the "Missouri Plan": the worst of all selection plans lumped into one).

In Virginia, we have political selection without life tenure. Every judge is selected by the General Assembly and periodically reappointed by that same august body. As someone who has observed this process in action, I see three possible flaws:

(1) The potential for nominees to be not based upon "not what you know, but who you know."

This comes and goes. Sometimes the General Assembly is willing to take the advice of the local Bar and sometimes it's not. Knowing an Assembly member can never hurt someone's chances of becoming a judge. On the other hand, no member is going to purposefully appoint an incompetent or lunatic judge if he can help it. You see, the Assembly member has to run for re-election himself and doesn't have any desire to place an anchor around his own neck.

(2) The potential for judges to have to enforce laws in a manner out of sync with the locality because the General Assembly is strongly influenced by other parts of the Commonwealth or by influential lobbying groups.

If the 10 most populous counties in Virginia are strongly anti-firearm, but the locality the judge is in is pro-firearm, where will the judge come down? After all, he has to face down all those Delegates and Senators (perhaps a majority) from anti-firearm counties. On the other hand, if the pro-firearm lobby is extremely strong in the General Assembly (out of proportion to the population) what does a judge in one of the 10 counties do, knowing that he will face Delegates and Senators influenced by this group?

(3) The potential for judges to be appointed by the General Assembly who are not appropriate to the jurisdiction.

Assume one party gets a large majority in the General Assembly, but the locality strongly favors the other party. There's a strong possibility that the General Assembly is going to appoint someone more in tune with its sensibilities than those of the locality.


I've watched the Virginia system in action for a while now and, warts and all, think it's a fairly good system. It's certainly better than the Missouri Plan or the Life Tenure plan and has merits which favor it in debates against a direct election system. In point of fact, members such as Delegate Albo have made efforts to improve the system further thru the (now defunct) judicial review system. Could it use improvement? Sure it could. Every system could use improvement.

Still, I've watched the system work in regards to poor judges. In the 8+ years I've been practicing, I've seen a lawyer rebellion lead to a judge not being re-appointed. I've seen a judge removed for cause from his seat. This year, I've seen citizen pressure lead to a judge being re-appointed only after he sent a letter to the Chief Justice stating he was retiring a year after his re-appointment. In this same year, I saw the General Assembly refuse to remove a judge after a clearly partisan attack against him (as opposed to real questions as to his judicial abilities). So, it appears that the system is working.

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