In Unprecedented Move, Virginia Republicans Appoint Their Own Supreme Court Pick

by | August 5, 2015

By Travis Fain

General Assembly Republicans won't sign off on Gov. Terry McAuliffe's pick for the state Supreme Court, they announced late Sunday, going instead with Appeals Court Judge Rossie D. Alston.

McAuliffe's press office responded Monday morning, saying the decision was "without precedent in Virginia history." The administration didn't learn about the move until shortly before the GOP press release -- which the Daily Press received via email at 10:20 p.m. Sunday -- went out, spokesman Brian Coy said.

McAuliffe appointed Fairfax Judge Jane Marum Roush to the state's highest court last week, filling a vacancy that came up Aug. 1. With the legislature out of session, McAuliffe could take his pick. But to serve for very long Roush needed the General Assembly to elect her.

Speaker of the House William Howell and Senate Majority Leader Thomas K. "Tommy" Norment said in their joint press release Sunday that the caucuses want Alston instead.

Republicans hold two-thirds of the House of Delegates and a narrow majority in the state Senate. They're slated to come back into session Aug. 17. They were called there by McAuliffe, to redraw the 3rd Congressional District, which a panel of federal court judges has twice held unconstitutional.

"Judge Alston has earned widespread support in the House, and it is our intention to elect him when the special session convenes," Howell said in a joint statement with Norment late Sunday.

"The Constitution of Virginia vests the authority to elect judges with the General Assembly," Norment, R-James City, said in the statement. "Although Governor McAuliffe has designated a different candidate, who is also highly qualified, a consensus has developed among the members of the Senate Republican Caucus that Judge Alston should fill this vacancy. As a result, I expect Judge Alston will be elected to the Virginia Supreme Court during the special session."

When Roush's appointment was announced last Monday, McAuliffe had the backing of the legislature's Fairfax delegation, including House Courts of Justice Chairman David Albo, R-Springfield. The adminstration worked the phones during the day, seeking the greater support that it apparently did not get. Roush made calls as well, Coy said.

Coy also said General Assembly leaders were informed of Roush's appointment before it broke in the Richmond Times Dispatch, which published the news online the Friday evening before Roush's formal introduction Monday.

"Republicans' decision to throw a distinguished jurist of 23 years off of the Supreme Court with no job to return to is without precedent in Virginia history," Coy said in a statement Monday morning. "It is no surprise that Republicans in the General Assembly would politicize this process, but it's a tragedy that it will cost Virginia the service of a qualified female Supreme Court justice."

The Supreme Court vacancy came up when Justice LeRoy F. Millette Jr. retired early. Court terms run 12 years.

Assuming Alston replaces Millette, it will not be the first time. He followed Millette as chief judge in Prince William County, according to The Washington Post in 2007. He also followed Millette onto the Court of Appeals in 2009.

Alston's appointment would open a seat on the Virginia Court of Appeals, which the General Assembly would also fill, though depending on the timing McAuliffe may be able to make an appointment first.

(c)2015 the Daily Press (Newport News, Va.)