In a surprise move, Democrats in the Virginia Senate, with the help of retiring Sen. John Watkins, R-Powhatan, adjourned the legislature’s special session Monday afternoon.
The move, if it holds up to a parliamentary challenge by Republicans, will enable Gov. Terry McAuliffe to reappoint Supreme Court Justice Jane Marum Roush to another interim term when her current term expires in mid-September.
It also would throw to federal judges the task of redrawing the state’s congressional map. A three-judge panel had ordered lawmakers to craft changes to the 3rd Congressional District by Sept. 1.
The move to adjourn, combined with the bitter fights over the state Supreme Court and the congressional map, further widened the partisan rift between the Democrats who control the executive branch and the Republicans who control the legislative branch.
“I thought this was an embarrassing day for the commonwealth of Virginia, a waste of $40,000,” McAuliffe told reporters outside the Executive Mansion at the end the day, referring to the cost of running a special session.
The governor said he will reappoint Roush to the Supreme Court when her interim appointment expires Sept. 16.
“She has been a pawn in a partisan political game that she should never have been in,” the governor said.
Earlier Monday, Senate Democrats blocked the GOP’s choice to replace Roush, McAuliffe’s recess appointee. Watkins sided with 19 Democrats in voting against the nomination of Court of Appeals Judge Rossie D. Alston Jr.
House Republicans had nominated him to replace Roush, a former Fairfax County Circuit Court judge. McAuliffe appointed Roush to the high court last month to succeed retiring Justice LeRoy Millette.
Lt. Gov. Ralph S. Northam, a Democrat, cast the deciding vote on the 20-20 tie to defeat the resolution.
Democrats and Republicans had expressed reservations that lawmakers would be able to come up with a congressional map that would win approval of the GOP-controlled legislature and the Democratic administration. But the effort barely had gotten underway when Senate Democrats put an end to the process.
The senators adjourned “in recognition that legislators are impossibly deadlocked and have no chance of approving legitimate congressional maps capable of passing constitutional muster,” McAuliffe said in a statement.
House and Senate Republican leaders blasted the Senate Democrats’ action as unconstitutional and irresponsible.
The statement said the House of Delegates remains in session. “Unfortunately, without the presence of the Senate, there is no possible path forward on redistricting.”
Sen. A. Donald McEachin, D-Henrico, who executed the parliamentary maneuver, said an “ancillary benefit” was that the governor now could reappoint Roush. Earlier in the day, the GOP-controlled committee that nominated Alston for the job denied Roush an interview to discuss her seat on the court.
If the legislature remains in session, Roush would have to leave the court 30 days from Monday without legislative endorsement. If it remains adjourned, McAuliffe could appoint her to another interim term that would last until 30 days following the next session of the General Assembly.
Whether the Senate could remain adjourned still was in doubt Monday evening. Sen. Ryan T. McDougle, R-Hanover, told reporters he was researching whether one body in the General Assembly could adjourn for more than three days without the consent of the other body.
And Del. C. Todd Gilbert, R-Shenandoah, said, “Somebody’s going to have to dust off some old book to figure out where we are right now.”
Watkins, a moderate Republican, had indicated he was concerned over the precedent of allowing politics to directly influence the firing of a sitting Supreme Court justice who otherwise is highly qualified for the job.
He let fellow lawmakers and the administration know he disapproved of how the partisan process had played out.
“We have not held ourselves very high in this hour,” Watkins said on the Senate floor before he joined Democrats to vote against Alston, the appeals court judge.
“I think we need to go back to square one,” he continued, saying his vote “puts the burden back on us to figure out what is in the best interests for the people of Virginia and what is in the best interests for the court.”
The vote effectively scuttles Alston’s bid to join the court at this time. In order to serve a full, 12-year term, either candidate would have to win approval from the majority of the House and Senate at some point.
Senate Majority Leader Thomas K. Norment Jr., R-James City, speaking before the Senate’s surprise adjournment, said the legislature will not elect Roush to a full term.
“That position is vaporized at the end of 30 days,” he said.
Roush’s nomination was troubled from almost the moment McAuliffe announced it in late July.
GOP leaders complained that the governor and his staff had little or no contact with them before he chose Roush as his interim choice to replace Millette, a protocol they said governors including Timothy M. Kaine and Mark R. Warner, both Democrats, had followed.
“The governor never, ever called me — no one on this side received a call about whether this appointment would be acceptable,” Norment told senators.
“I have a feeling that no matter who I put up, they were going to have a problem with,” McAuliffe told reporters at the end of the day Monday.
“But if we went through today because of a missed phone call ... I’m sorry. This isn’t Peyton Place. We are running a government here,” he added, maintaining there was “plenty of outreach” to Republicans.
“I think they were unhappy about the redistricting process, they wanted their own judge,” the governor said, when asked to explain he dust-up.
“I didn’t have these issues when I was president of the student body in Bishop Ludden High School” in Syracuse, N.Y.
But some in the legislature took pains to remind the administration that the General Assembly ultimately decides who will or will not be a judge in Virginia for a full term.
They also noted that Alston is African-American, to rebuff the notion that refusing to support Roush was discriminatory.
After the events of the past two weeks, Watkins wondered whether Roush or Alston would want to serve under the current circumstances.
Watkins said the court “will be just fine” with six justices in the short term.
“It concerns me that this situation has been brought about ... by people on both sides,” he said.