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Thoughts On Virginia’s Judicial Selection Process

by @ 11:36 am on March 31, 2008. Filed under Legal, Virginia, Virginia Politics

Prompted apparently by a pair of articles in the Bristol Herald-Courier, here and here, several of my fellow Virginia bloggers have posts today about the pros and cons of the way that state-level, and especially trial court, judges are selected and appointed in Virginia.

Virginia is virtually unique in the United States in that is judicial selection and reappointment process is entirely controlled by the state legislature and goes back to the Reconstruction era, as the Herald notes:

No other state gives legislators more power in selecting judges than Virginia – one of just two states where legislature seats judges. In fact, judicial candidates must have the backing of at least one local legislator to be considered.

Though the process has evolved from the dominant party in the General Assembly ramming their preferred candidates through to the bench, there have been few broad reforms to the process, and it remains largely the same system as it was following the Reconstruction era.

A shifting political landscape in 1995 yielded the first administrative changes to the system, which sprung from a 20-20 split in the Senate between Democrats and Republicans. Instead of the majority party picking judges in closed-door caucuses, the divided assembly gave rise to a form of senatorial courtesy, which shifted the authority of nominating judicial candidates to local legislative delegations.

According to Senate rules, each lawmaker that represents part of a judicial circuit must sign a nominating form for a candidate, who would then automatically be placed on that chamber’s judicial appointment bill. If one senator withholds support, as one lawmaker did this session, the nomination is opened up to a floor vote – which would generally hew to the position of the senator whose party is dominant.

Scott White raises concerns about the propriety of the Assembly, which is made up of a lot of attorneys, choosing the judges that they and their fellow attorneys appear before:

One of my biggest concerns over the process we use to appoint and place our judges has in fact been that it is the General Assembly that does it.

A large part of our legislative body is made of of lawyers who have active practices in the districts they represent.


So what we have are legislators who are appointing judges and writing the laws that those judges are going to hold people’s actions against. And if that isn’t enough, those same lawyers are the ones who are going to be defending clients against the very laws they wrote and in front of the judges they appointed.

Smyth County Conservative, on the other hand, thinks that the current system works better than any of the alternatives:

I strongly favor Virginia’s current system of the General Assembly electing judges. I do not think it would be a good idea to allow judges to be popularly elected as it would inject judges into the public political process. I don’t think judges should be running public campaigns while in office. It wouldn’t be good for a judge to run a campaign by putting up signs with the likes of ”tough on crime” and other slogans as this could be a potential conflict with their duties.

And Kilo agrees:

While the process is not perfect, it is the best way to seat the bench. The process is not much different than the feds use. Many of us have seen first hand in Kentucky what happens when judges are elected by popular vote. That process makes you wonder what candidate is supported by drug dealers, pot growers, contractors, etc. Think about it.

If you want another example of what can go wrong when the judiciary succumbs to the electoral process, you don’t need to look much further than the Supreme Court of Alabama and Former Chief Judge Roy Moore, who (regardless of the merits of his views) acted more like a politician on the bench than a Judge.

There are ways to improve the current system but instituting the types of merit-based reviews that are currently performed for candidates for the Supreme Court and Court of Appeals as well as judicial appointments arising in certain jurisdictions such as Fairfax and Prince William Counties, but that’s as far as I think we should go.

If you think there’s a conflict of interest now, what do you think would happen if Judges were soliciting campaign contributions from the very lawyers who appear before them ?

6 Responses to “Thoughts On Virginia’s Judicial Selection Process”

  1. Scott says:

    I guess my post wasn’t very clear on my perspective. I agree that this is the best way to do things, to keep judges and their appointment apolitical.

    I do, however, see a potential conflict for the reasons you quoted above.

  2. Scott,

    And perhaps I misunderstood.

    I don’t know about the rest of the state, and I get the impression that judicial appointments in some of the down-state areas are still tied in to the good-old-boy network, but I’ve seen first-hand that the judicial appointment process that the Bar Associations in Northern Virginia have come up with does tend to work pretty well.

    With the exception of one Circuit Court appointment in Alexandria that got tied up in politics a few years ago, partisanship hasn’t played a big part in the process around here in awhile and I think our judges are among the best in the state.

  3. Scott,

    Of course, I see the problem with recommending something that we do here in NoVa to the rest of the state ;)

  4. Kilo says:

    Doug-Thanks for the link! I updated my post to link back to you.
    I am not a expert, but I have watched my neighboring Ky(12 miles away) and the problems they have and what people say about the process. Known drug dealers contributing to campaigns…later receiving questionable sentences. I think as a whole the BHC is barking up the wrong tree. The comparison of a political contribution to judges actually campaigning for a popular vote is absurd.

  5. M says:

    Fairfax Judge, Janine Saxe, is a prime example of the corruption in Fairfax County Courts. Janine was President of the Fairfax Bar association prior to becoming a Judge. There is huge corruption amongst the attorneys and court system in Fairfax County. My kids who are now adults have been permanently scarred by Ms. Saxe who was appointed “independent guardian ad litem”. She falsified court documents that determined custody. My very articulate adult daughter is outraged that she is a currently a Fairfax County Judge. My adult son was emotionally and physically traumatized by Ms. Saxe’s dishonest actions and this corrupt county. She is dangerous to the Fairfax community. It is disgusting reading the article Ms. Saxe wrote for the Fairfax Bar encouraging attorneys to share their experience with the court system while commenting that the reason they do not post their feedback “because people are so maxed out with their practices”. Fairfax counties needs a new way to appoint judges. Courts need monitors to keep the Judges and attorneys honest. There are not any checks and balances in place. The Fairfax court system and the key players have profited off the pain of children. Nobody is going to rock the gravy train of cash, not even Ms. Saxe who wears Channel sunglasses, who herself has left children in the dust and scarred forever by her actions. One post on this Judge calls her actions “white collar crime”. It is heartbreaking for moms like me who watch this cycle being repeated with a new generation of victims. People like Judge Saxe do not have the capacity to fully feel the pain they carelessly inflict on their victims who were innocent children depending on her position to help them. Most victims are so painfully shattered by their experience; they do not have the strength to make it right. I am one mom who has been painfully traumatized by the corruption in the Fairfax County Court System who is extremely tenacious, resilient, and strong unlike many of the moms that I have talked to regarding their experience with Ms. Saxe or the Fairfax Courts. My daughter is strong and never backed down with Ms. Saxe or any of the players that profit off child custody issues. Many people are so traumatized that they cannot face the pain of correcting the system. I always knew with the Internet and the ability for people to connect and tell their story, the Fairfax County system including Janine Saxe would be exposed. I always knew that this system was corrupt. They think that they are so insulated by their internal network of players that they are above the law. Nobody in America is above the law including Janine Saxe. My legacy to my children was to document our personal experience with every corrupt player who came into contact with our case so our painful experience could be exposed to the world. My children who are now adults need restitution to heal. My sister witnessing the pain of my children at the hands of these people paid law students to organize and document our personal experience so our story can be heard with court reporters every step of the way. There is nowhere to hide for these people. These victims who are now adults need to start their lives after their painful childhood experience knowing that the corruption will stop for the new generation who are being currently victimized by the Fairfax Court System. I encourage others to find the strength to face their trauma by Janine Saxe and the other players who seem to have an incestuous bond by the unspoken rules of the Fairfax Bar and Judicial system. The cycle of corruption needs to be stopped. Let’s ban together to change this system to spare other innocent children. Janine Saxe is so removed by her actions, she cannot comprehend the pain that she has caused to so many children who she let down. These families and the children who are now adults should receive restitution by the county for these crimes. The scars will never go away completely for these kids or their parents. Hopefully, enough people will come together to see Janine Saxe go to jail for her crimes, misrepresentation, and falsification of documents to the court. Survivors of the Fairfax Court System need to seek justice and restitution. Our adult kids who survived this system need to experience justice to heal. If Janine Saxe serves time in jail, she might then know what other mothers and their children felt by her criminal actions. Janine Saxe is not above the law. My adult daughter will fight to make sure other generations of kids who cycle through the corrupt Fairfax Court system, the Judges, the attorneys, the psychologists and all the key players who profit off of pain and scar children will be held accountable.

  6. Pam Watson says:

    On Google type Janine Saxe and White Collar Child Abuse and see how many links pop up about this shit head Judge.

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