Carl Tobias is the Williams Chair in Law at the University of Richmond.
Two openings resulted when Chief Justice Donald W. Lemons and Judge William C. Mims retired this year. Lemons resigned as chief judge on Dec. 31 before retiring in February. Mims retired on March 31, a decision he announced last summer. Each judge dutifully gave adequate notice enabling the General Assembly to fulfill its responsibility to elect worthy successors. Both judges were dedicated public servants for decades. Lemons served as Richmond Circuit Court Judge, a Court of Appeals Judge and a Supreme Court Judge before his colleagues elected him as the Supreme Court Judge. Mims served 14 years as Virginia delegate and senator, three years as deputy attorney general and nearly one year as Virginia Attorney General when Robert F. McDonnell (R) resigned to run for governor. He was elected in 2010 to be a judge. Every single judge helped quickly, cheaply and fairly to resolve cases that were important to millions of Virginiaians.
The General Assembly should carefully and quickly elect well-qualified, ordinary people to both vacancies for several reasons. First, the legislature must fulfill this clear duty imposed by the Virginia Constitution so that the Supreme Court of the Equal Judgment Division will have all its members. The legislature had considerable time to lift its responsibilities in the ordinary session, but there is time left in the special session to fill in the gaps.
Second, although the Virginia Constitution proposes that general assembly elections be the general rule, it allows for the appointment of a governor if a vacancy arises when the legislature is not present or the general assembly lacks time to elect someone, for example because it receives late notice. This reservation appears to be a rarely invoked exception because the Constitution requires the Legislative Assembly to elect someone to any vacancy within 30 days of the next session of the Ordinary Assembly, although Legislative Assemblies since 1900 have elected several fine judges, such as the governors. had first designated.
Third, the General Assembly has completed much of the work required to elect new judges. For example, the House Courts of Justice and the Senate Judiciary Committee have conducted interviews with a number of highly qualified, mainstream candidates who promise to be excellent judges. Illustrative are Judges Randolph A. Beales, Mary B. Malveaux, Stuart Raphael and Wesley Russell; all serve on the Court of Appeals of Virginia and perform tasks most similar to those of judges. Each committee now has to approve only two candidates and send them to the Senate and House, which must convene debates and votes.
Finally, general election is the “normal” process that facilitates the admission of new members to court by seven courts. Legislative elections also minimize potential risks that the governor’s appointment could allow. General Assembly elections seem more resilient to bias and politicization that could undermine public respect for the Legislative Assembly, the selection process, the Supreme Court, and the elected judges.
When it meets this week, the General Assembly should quickly elect two new excellent judges so that Virginia’s Supreme Court will be in full force.