Republican plans to replace Virginia Supreme Court Justice Jane Marum Roush have been put on hold after Sen. Glen H. Sturtevant Jr. (R-Richmond) announced he would not lend his vote in support of her intended replacement.
Gov. Terry McAuliffe appointed Roush, a University alumna, to the Virginia Supreme Court while the General Assembly was on recess in July of 2015. Republican leaders in the legislature, however, are putting forth Virginia Court of Appeals Judge Rossie D. Alston Jr. to replace Roush as justice.
Republicans hold a 21-19 majority in the 40-member Virginia State Senate, making Sturtevant’s vote a significant one. The loss of his vote — or the vote of any other Republican senator — would end the matter in a tie if all of the Senate Democrats oppose the appointment of a new judge.
A majority vote is needed in order to appoint Alston. In the case of a tie, no justice would be appointed and Roush’s appointment would still expire on Feb. 12.
However, if the Senate does not appoint a justice, McAuliffe will be able to reappoint Roush after the legislature adjourns should he choose to do so.
Roush’s original appointment was outside of McAuliffe’s prerogative because the House of Delegates was still in session at the time of the recess appointment, Jeff Ryer, a spokesperson for the Virginia Senate Republican Caucus, said. The only time the governor has the power to appoint a judge is when the legislature is not in session.
Judges in Virginia are elected by the General Assembly, and in order to be elected, candidates must receive majority votes in both the House of Delegates and the Senate, Ryer said.
“I am reasonably confident that Judge Alston will receive the 51 votes from the House of Delegates, and I don’t have a count for the Senate as of yet,” Ryer said.
Roush’s interim appointment, which Ryer said is not recognized by the House of Delegates, will expire on Feb. 12 if she is not confirmed within 30 days of the start of the General Assembly session.
“Generally speaking, in most cases prospective judges are granted the privilege of an interview if it is believed that they can reasonably expect to receive the support of enough members that they would be able to secure election,” Ryer said. “The interview process is part of what’s required for certification.”
Sturtevant said he maintains his support for Roush.
Sturtevant said his position has been that Roush is a “very highly qualified judge with many years of distinguished service and that she should continue serving on the Virginia Supreme Court.”
Support for Roush’s appointment was an example in a part of his campaign to take the politics out of the selection of judges last November, Sturtevant said.
While most people, including himself, believe the appointment was poorly handled by McAuliffe, “two wrongs do not make a right,” Sturtevant said.
“Partisan politics should not play a part in the picking of that judge, and my belief is that she should stay on the bench,” Sturtevant said. “My view is that if someone is highly qualified and someone who is even tempered and can apply the law fairly, that is where the discussion should end.”
McAuliffe spokesperson Irma Palmer said the governor agrees with Sturtevant’s support for Roush.
"Gov. McAuliffe appointed Justice Roush because she is the most qualified person for the job. She has a strong record of public service and sound legal reasoning,” Palmer said in an email statement. “The governor hopes that more Republicans will join Sen. Sturtevant in putting Virginia before partisan politics.”
House Republican leaders have announced that the House Courts of Justice Committee will interview both Roush and Alston on Wednesday.
The interviews will allow the legislature to consider the merits of both candidates, Speaker William J. Howell (R-Stafford) said in a press release.
However, Howell said House leadership will continue to support Alston.
“Since last August, the House has maintained that Judge Alston is the most qualified choice for the current vacancy,” Howell wrote. “He is a widely respected and experienced Court of Appeals Judge who earned the endorsement of every major bar association in the Commonwealth.”
Howell said the House “has also been clear” that Roush disqualified herself from serving on the court by accepting an “unconstitutional” appointment from the governor.
Following Wednesday’s interviews, the House intends to hold an election to fill the vacancy Thursday. The Senate will also need to confirm the appointment.
Editor’s note: This story has been updated to include statements from McAuliffe’s office and information regarding the House Courts of Justice Committee interview.
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