12/14/11: The wrong way to appoint judges

This op-ed appeared in The Virginian-Pilot on the date shown.

LAST FRIDAY, members of the House Courts of Justice Committee’s judicial panel held interviews for judges whose terms expire next year. According to the American Judicature Society, Virginia is one of only two states whose legislature is responsible for selecting its judges.

Coincidentally, Lt. Gov. Bill Bolling opined on this very subject last week. In an interview with the editorial board of the Daily Press in Newport News, Bolling, who is seeking the Republican nomination for governor in 2013, said Virginia should adopt a bipartisan commission to select its judges.

Bolling’s idea is not new. Retired Supreme Court Justice Sandra Day O’Connor has made judicial independence a priority since she left the bench in 2006. While aimed primarily at states in which judges are elected, O’Connor’s effort calls for a commission-based system in which judges are selected based on merit.

The O’Connor Judicial Selection Initiative at the Institute for the Advancement of the American Legal System believes that the best judicial nominating commissions should have equal representation from political parties, more non-attorney members than attorney members, staggered commission member terms and transparent proceedings.

Contrast that with last Friday’s interviews. Nowhere in the official documents for the meeting were even the names of the judicial panel listed. We know the identity of at least two of the members present: Dels. Bill Janis and Rob Bell. Both men, like many in the General Assembly, are lawyers.

Which brings us to another problem with Virginia’s current system: With so many lawyers in the General Assembly, it is almost inevitable that they end up practicing before the very judges they appoint. This is especially true because of the way judges are nominated: recommendations come from the local legislative delegations.

In his interview, Bolling said there was too much “horse-trading” in the selection of judges.

Looking just at the judicial appointments in Hampton Roads over the last few years will give you an idea of how this works. As reported in this paper, Democratic Sen. Ralph Northam spent his first year in office in 2008 brokering a deal that allowed vacancies on Norfolk courts to be filled in exchange for his support of Republicans’ choice for a seat in Virginia Beach. A similar deal was reached last summer on the appointment of a judge on the Eastern Shore.

As a state senator in 2000, Bolling introduced Senate Bill 341, which would have created a judicial nominations commission composed of 15 members, none of whom could be members of the General Assembly. The bill never made it out of committee.

It will be difficult to persuade the legislature to give up the power to appoint judges, a fact Bolling readily acknowledged. “What is right,” author Bodie Thoene once wrote, “is often forgotten by what is convenient.”

That the legislature selects judges may be convenient, but that doesn’t make it right.