The 2008 Virginia General Assembly adjourned this summer without electing judges to vacancies on the State Corporation Commission (the "Commission" or "SCC"), the Supreme Court of Virginia, and numerous circuit courts. Thus, Democratic Governor Tim Kaine recently appointed individuals to fill these openings. Although the jurists whom the Governor appointed seem very well-qualified, the judges may only serve for five months, unless the 2009 General Assembly elects them. The 2008 Assembly's failure to elect judges for these vacancies demonstrates that the selection process is ineffective, and perhaps broken, as this development has eroded the delivery of justice and may have undermined public respect for judicial selection. The process for choosing judges, therefore, deserves reassessment to ascertain whether the system merits reform. This piece undertakes that effort.
This article first evaluates the origins and development of Virginia's procedure for appointing judges. This analysis determines that Virginia and South Carolina are the only jurisdictions that currently select judges through a process of legislative election. The examination also discerns that the Old Dominion has employed this system throughout most of its history since the American Revolution. The regime concomitantly operated rather efficaciously for much of the time when one major political party controlled the governorship and both houses of the General Assembly. Moreover, the review finds that legislators and additional observers have articulated, evaluated, and discussed various suggestions for change over the years and that the Assembly has recently instituted or experimented with some, but it has permanently adopted very few.
The second section assesses recent developments which implicate judicial selection in the Old Dominion. The section finds that increasing partisanship and divisiveness have attended the process for choosing judges, especially with the rise and growth of a real two-party system as well as divided government in Virginia. The portion shows how the experience in the 2008 General Assembly- which failed in one regular and two special sessions to elect judges for numerous vacancies, despite a plethora of opportunities to name the jurists-suggests that the system is ineffective, if not beyond remediation.
The final section, accordingly, explores numerous recommendations for future treatment of judicial selection in Virginia. This part descriptively evaluates the benefits afforded and disadvantages imposed by the processes that many other states employ when choosing members of the bench. The section concludes by proffering a number of solutions which appear to hold the greatest promise for improving Virginia judicial selection.
Carl Tobias, Reconsidering Virginia Judicial Selection, 43 U. Rich. L. Rev. 37 (2008)