Washington Post \u00a0August 19, 2015<\/p>\n
Republicans escalate fight with McAuliffe over Supreme Court judge<\/p>\n
By Jenna Portnoy August 19 at 11:10 PM
\nRICHMOND \u2014 Republicans on Wednesday warned Gov. Terry McAuliffe that his plan to reappoint the Virginia Supreme Court justice at the center of a toxic political showdown could subject her rulings to legal challenge.<\/p>\n
McAuliffe (D) recently gave Jane Marum Roush a temporary spot on the state\u2019s highest court, triggering a fight with Republicans that erupted during Monday\u2019s special legislative session.<\/p>\n
The day-long partisan brawl started with Republicans\u2019 refusal to keep her on the job and ended with a strident McAuliffe\u2019s promise to give her a second temporary stint on the court next month.<\/p>\n
Democrats cheered and said the row would help them win back the Senate in November.<\/p>\n
But Republicans said McAuliffe\u2019s actions could not only cloud Roush\u2019s tenure but also give aggrieved litigants reason to challenge her authority on the bench. A University of Virginia law professor and the principal draftsman of the current version of the state constitution agrees with them.<\/p>\n
Republicans said McAuliffe\u2019s willingness to risk tainting the political process confirms what the GOP has been saying since the longtime political operative and friend of Bill Clinton and Hillary Rodham Clinton set his sights on the governor\u2019s mansion.<\/p>\n
\u201cWe said we were going to see a Washington-style approach to governing take hold in Virginia,\u201d said Del. C. Todd Gilbert (R-Shenandoah), a criminal defense lawyer and former prosecutor. \u201cWe have had battles with the Senate and governors, but I have never seen it this toxic and the only different variable in this equation is Terry McAuliffe.\u201d<\/p>\n
A spokeswoman for McAuliffe did not respond to requests for comment on the Republicans\u2019 stance about Roush.<\/p>\n
Senate Minority Leader Richard L. Saslaw (D-Fairfax) said the issue is a winner for Democrats.<\/p>\n
\u201cPeople are infuriated over this. We\u2019re not going to just drop it. They went after a highly qualified woman because they didn\u2019t like the governor,\u201d he said Tuesday. \u201cWe\u2019re doing all the right things. They\u2019re just making huge mistakes.\u201d<\/p>\n
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\n[What is the gender gap on the states\u2019 highest courts?]<\/p>\n
At issue is a procedural question about whether Monday\u2019s special session was properly adjourned. When the legislature is not in session, McAuliffe may appoint a judge on an interim basis, but the appointment expires 30 days after the start of the next session unless lawmakers elect the judge to a full 12-year term.<\/p>\n
Last month, McAuliffe appointed Roush to an interim spot on the state\u2019s highest court. Because Republicans declined to affirm the appointment Monday, her tenure will expire on Sept. 16 \u2014 and McAuliffe vowed Monday to appoint her again.<\/p>\n
Republicans had planned to unseat Roush and elect their own choice, Court of Appeals Judge Rossie D. Alston Jr., to a full 12-year term. When that failed, they planned to keep the session open so that McAuliffe would be barred from making another interim appointment. In both cases, a moderate Republican senator stepped in, voting against Alston\u2019s nomination and supporting a surprise motion by a Democrat to adjourn the session altogether, thereby preserving McAuliffe\u2019s right to appoint Roush a second time.<\/p>\n
McAuliffe vowed to press on with Roush and issued his own warning.<\/p>\n
\u201cI\u2019m not going to get into legislative strategy. I am very confident that Democrats will win the Senate,\u201d he told reporters Monday. \u201cAnd if they want to see judges done on their side, we\u2019re going to have to see that fairness is done.\u201d<\/p>\n
Not so fast, said Republicans. They argued that only the Senate adjourned and the House is still technically in session \u2014 so McAuliffe\u2019s power to make appointments does not kick in.<\/p>\n
The situation is unheard of in Virginia, making the legal questions murky, but some believe that chaos could ensue.<\/p>\n
A.E. Dick Howard, the U-Va. law professor, said if Republicans challenged McAuliffe\u2019s authority to reappoint Roush, her judicial opinions could be in doubt.<\/p>\n
\u201cThat would be sticky,\u201d he said. \u201cPresumably, the authority of that judge to preside over cases would be called into question.\u201d
\nL. Steven Emmert, a lawyer based in Virginia Beach and publisher of Virginia Appellate News & Analysis, called the predicament \u201ca mess largely without precedent.\u201d<\/p>\n
If a court eventually rules that Roush\u2019s appointment was improper, he said: \u201cI would expect losing litigants to pounce on it.\u201d<\/p>\n
That Roush\u2019s current term on the bench expires in mid-September, in the middle of a week-long session of the Supreme Court, only adds to the questions, Emmert said.<\/p>\n
\u201cWhat happens to folks who have arguments [that day]? Who\u2019s going to be sitting there, if anybody? Who will decide if there\u2019s a legal challenge to who\u2019s entitled to that seat?\u201d he said.<\/p>\n
Gilbert said a similar case played out in Pennsylvania in 1974. In the end, a court invalidated 680 gubernatorial appointments.<\/p>\n
\u201cThere may be consequences for the governor acting as though the special session has ended,\u201d Gilbert said, citing research from the Virginia Division of Legislative Services.<\/p>\n
Sen. A. Donald McEachin (Richmond), an attorney and the Democrat who made the motion that abruptly ended Virginia\u2019s session, said Republicans are wrong \u2014 but he declined to explain because the case may end up in court.<\/p>\n
Ironically, it was David B. Albo, a Republican delegate from Roush\u2019s home county of Fairfax, in Northern Virginia, who in his capacity as chairman of the powerful House Courts of Justice Committee recommended in May that McAuliffe appoint her. Albo said he assumed the governor had cleared the political hurdles to getting her a full term.<\/p>\n
\u201cI think he should have called and vetted everybody, but, you know what, he\u2019s got a lot on his plate. It\u2019s tough to do your job perfectly every time,\u201d he said.<\/p>\n
Albo, who has served in the House for more than 20 years, said it never occurred to him the onus would be on him to get the GOP leadership to buy in.<\/p>\n
\u201cI didn\u2019t know that it was my responsibility to do that,\u201d he said. \u201cIf it was, I should have taken a more active role.\u201d<\/p>\n
Laura Vozzella contributed to this report.<\/p>\n","protected":false},"excerpt":{"rendered":"
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