By Marni E. Byrum and Manolita Holadia
This year all 140 seats of the Virginia General Assembly were up for election. This unique event was replete with campaign ads and solicitations ubiquitous online, over the air, in-person and plastered on yard signs and billboards throughout the commonwealth. For candidates it was open season to make a compelling emotional and sensory connection with voters.
There was no gubernatorial election, however, so this campaign season lacked the flare of an executive branch competition. In addition, something else was missing in the 2019 election. One aspect of the commonwealth’s democracy, often overlooked by its citizens, and something that makes it unique, is what voters did not see this fall: judicial political advertisements.
Virginia is one of only two states in the country where judges are selected by legislative and not, for example, popular election. One implication of Virginia’s system is the lack of political campaigns by judicial candidates. There are no robe-clad glossy photos of Virginia judges poised in a courtroom, and (thankfully) no political attack ads between judges and would-be judges.
While the status quo is a welcomed reprieve for many, some might ask, “Why is that, why don’t we vote for judges?” In fact, freeing judges from partisan campaigns is an essential aspect of the Virginia judiciary that ensures judicial independence, impartiality and integrity.
The mission of Virginia’s judicial system is to assure that disputes are resolved justly, promptly and economically. Key components necessary to discharge this mission are competent, honest judges. In Virginia, we have well-qualified, intelligent and honorable judges. However, this is not just coincident upon the fine pool of lawyers who practice here. There is a storied safeguard that helps ensure such talent rises to the top of the legal profession.
This history dates to the earliest days of the commonwealth when the General Assembly sought to select appellate judges — in part, believing the selection of judges by the governor alone vested too much power in one person. Even with a rich history, many Virginians don’t know much about the so-called “third branch.”
Here are a few basics. The Supreme Court of Virginia is the court of last resort and consists of seven justices elected by the General Assembly for 12-year terms. At the trial level, there are the judges of the 31 judicial circuit courts who also are elected by the General Assembly and serve eight-year terms. In between the Supreme Court of Virginia and the circuit courts is the Court of Appeals of Virginia; these judges also serve eight-year terms. Finally, there are the general and juvenile and domestic relations district courts. The judges of these courts serve six-year terms.
To qualify to serve on any state court, a judge must be a resident of the jurisdiction, a licensed attorney for at least five years and no older than 73. Candidates are vetted by state and local bar associations and interviewed by bipartisan legislative committees.
The selection criteria and tenure afforded to the various judges of the commonwealth help ensure that Virginia judges are less susceptible to fluctuating winds of political temperament and more committed to the unbiased application of law to fact. This is clear when one considers an alternative selection method used in many states.
Although popular election might seem like more of a good thing in the form of direct democracy, if Virginia judges were popularly elected, they would unquestionably be required to accept financial political contributions. If this were the case, the public might infer that a judicial candidate adopts the policy positions of his benefactor, which would have a corrosive effect on the perception of impartiality in the cases over which the judge presides.
Similarly, if a judge accepted contributions from attorneys or law firms, it could greatly impact the public’s view of the propriety of the judge’s decisions, especially regarding self-represented litigants. At a time when the American public has an historical lack of faith in government, it is imperative that the citizens of Virginia know what the lawyers of Virginia already know: We have honest, fair judges who make independent judicial decisions. In no small part, this is because our judges do not have to stand for popular election.
Some argue that in a time of divisive partisanship, having the appointment of judges dependent on the agreement of both houses of the General Assembly is impractical. As Rachel Bitecofer of Christopher Newport University’s Wason Center for Public Policy has noted, “[a]lthough Virginia politics is not as marked by gridlock and polarization as its federal counterpart across the Potomac, [a divided General Assembly] is likely to produce continued legislative stalemates . ...”
It is logical to believe this gridlock could carry over to the election of Virginia judges. Furthermore, additional friction is added when a governor’s judicial appointment, authorized when the General Assembly is adjourned, can be reversed by the legislature in a matter of months. Such interparty standoffs leave judicial vacancies unfilled.
These are valid criticisms and should be the topic of discussion for any proposed reform. However, what should not change is the fundamental apolitical nature of Virginia’s judiciary. The way to minimize legislative partisan divide should not be to increase judicial partisanship.
Virginians are fortunate to have a system that, although not perfect, is superior to the popularly elected judiciary found in many other states. Now that the partisanship of the 2019 General Assembly election has subsided, it is a good time to be thankful for the committed service of Virginia judges.