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On
February 1, 2003
, Virginia Supreme Court Justice Leroy R. Hassell,
Sr. will become the 24th Chief Justice of the Supreme
Court of Virginia and the Court’s first
African-American Chief Justice. Rather than being
elevated on the basis of seniority, as in the past,
Justice Hassell was elected by a majority vote of
the current members of the Court by virtue of a law
enacted by the 2002 General Assembly. The
opportunity for this historic development was
created by the retirement of Chief Justice Harry L.
Carrico, which leaves a vacancy on the High Court.
How the General Assembly goes about filling the
position will be as telling as whom it chooses.
The
selection of judges at both the federal and state
level has devolved into a political exercise with
all of the haggling and partisanship that any
political process entails. After loudly demanding
for years that no “litmus test” be applied to
judicial nominees, Democrats in
Washington
now state openly
that they will consider a nominee’s ideology
during the confirmation process. This zealous
recommitment to a leftist ideology has caused many
highly rated minorities and women, including an
unquestionably qualified Hispanic, Miguel Estrada,
to be summarily rejected because they dare to think
as individuals.
The
Democrat-controlled Senate’s treatment of
President Bush’s nominees has drawn the ire of
even the editorial board of the Washington Post.
Recently, the Post inveighed against the
overtly political nature of the Senate’s treatment
of the president’s judicial nominees and posed an
important rhetorical question: Do senators really
want a confirmation process in which conservatives
vote against liberals because they are liberals and
liberals oppose conservatives because they are
conservative?
While
in theory the judiciary is supposed to interpret the
laws made by the legislature, in reality some judges
often rewrite laws with which they disagree under
the guise of interpreting ambiguous language. This
modern-day practice was one of great concerns held
by the founding fathers. As Thomas Jefferson wrote
to Spencer Roane in 1821: “The great object of my
fear is the … judiciary. That body, like gravity,
ever acting with noiseless foot and unalarming
advance, gaining ground step by step and holding
what it gains, is engulfing insidiously, the special
governments into the jaws of that which feeds
them.”
Jefferson
understood the
inherent power courts possess and the tendency for
that power to be used.
Those
blocking the most recent U.S. Supreme Court nominees
fear that the president could fill the highly
anticipated vacancy on the United States Supreme
Court with a strict constructionist. Liberals fear
conservative judges because they understand, and
have understood for years, that they have been able
to achieve much of their agenda only by judicial
activism and that once they no longer have a
law-writing-
judiciary,
they will have to rely on more traditional means to
effect policy changes – such as running in and
winning elections.
Fortunately,
the judicial selection process in
Virginia
has not been so
tainted. Here, courts practice self-restraint and
leave the writing of legislation to the legislature.
As we face this new appointment to the Supreme
Court, however, we should be careful to ensure that
this philosophy does not change.
The
Virginia Supreme Court will, in coming years, decide
cases that could lend themselves to creative
statutory interpretation. In the past few terms, the
Court has grappled with the difficult matters such
as new voter identification rules enacted by the
General Assembly, the compulsory medication of a
criminal defendant who sought to avoid standing
trial by refusing to take anti-psychotic drugs
prescribed by his physician, and the question of
whether the burning of a cross is speech protected
by the First Amendment. These were closely decided
cases, the outcome of which could have been changed
by the vote of a single justice. Once the Virginia
Supreme Court ruled, often based upon its
interpretation of a statute or Virginia
Constitutional provision, there was no place to file
an appeal, as the judges have the last word on
issues of state law.
As
the new appointment to
Virginia
’s highest court
is debated on the op-ed pages and discussed within
legal and political circles across the Commonwealth,
commentators and most members of the bar will plead
with the Republicans not to make a political
selection. On
the other hand, the party activists, those that put
up the signs in the rain and work the polls, will
expect the Republicans to keep ideology in mind as
the potential nominees are selected. Those who toil
in the political trenches know that the courts,
including the Virginia Supreme Court, are a critical
component in our political system and play a
significant role in shaping public policy.
The
selection of judges in
Virginia
, though not as
openly partisan and hostile as the process at the
federal level, is nevertheless an expression of
political power. That is not to say that courts are
overtly political, but they do arbitrate disputes
often arising a political context.
The
proclivity of some judges to rewrite the laws was on
full display in
New Jersey
when
scandal-ridden Senator Robert G. Torricelli,
trailing in the polls, pulled out of the race.
New Jersey
election law
clearly states – no need for interpretation –
that the deadline for removing a name from the
ballot is 51 days, a deadline that Torricelli
missed. The Democrat party of
New Jersey
ignored the law
and substituted a popular former Senator Frank
Lautenberg,
for Torricelli.
The case came before the New Jersey Supreme
Court, where the justices ruled unanimously that 51
days does not mean 51 days. The Court did not feel
the necessity to follow the law, but only to fix a
“fair” result. The thud you hear is the rule of
law being tossed in the trash can. This result, by
the way, is partly the legacy of former Governor
Chris
tie Todd Whitman,
a Republican, who appointed a majority of the court.
Thus one sees in
New Jersey
how the legacy of
the Republican-controlled Virginia General Assembly
could be written, in part, by the Justice they
select to replace retiring Chief Justice Carrico.
While
wandering in the desert of the political minority
for years, Republicans claimed that they would
improve the process by which judges are selected and
select judges that reflect
Virginia
’s values. With
the impending retirement of Chief Justice Carrico,
the Republicans have an opportunity to make a
statement about their own values and whether those
values will be given a voice on the highest court in
the Commonwealth. Let’s hope they make a wise
choice.
--
October 28, 2002
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