A Fairfax County circuit county judge has sided with state Senate Democrats who filed a lawsuit to prevent eight public university board members appointed by Gov. Glenn Youngkin from continuing to serve.

The Democrats claimed that an 8-to-4 vote June 9 by a Senate subcommittee during a special session required no other action. Youngkin and Attorney General Jason Miyares countered that rejection had to undergo a full vote of the Senate. The eight nominees could continue serving until such a vote occurred.

“The Senate’s rejection of the Confirmation Resolution, by and through the vote of the Committee charged by the Senate with reviewing the resolution and determining whether it should advance or die in committee, constitutes the refusal of the General Assembly to confirm the Disputed Appointees,” wrote Jonathan D. Frieden in a ruling handed down today.

“Today, the court affirmed what we have maintained all along,” said Sen. Aaron Rouse, D-Virginia Beach, head of the Privileges and Elections Committee, in a statement: “The Senate of Virginia has the constitutional authority to confirm or reject board nominees, and that authority cannot be bypassed.”

Affected are board members of the University of Virginia, the Virginia Military Institute and George Mason University, each of which have been embroiled in battles over Diversity, Equity & Inclusion (DEI).

The ruling, if upheld on appeal, would fundamentally alter the powers of the legislative and executive branches as practiced. Under the state constitution, Virginia governors nominate individuals to serve on the boards of public universities, and the legislature has the right to confirm or reject them. Traditionally, legislators gave governors deference, but Democrats have become more assertive as the stakes over who controls Virginia’s public universities has increased.

In the past, lawmakers waited until the regular session of the General Assembly to cashier candidates they didn’t like. The Senate committee struck disfavored names from a single roster of hundreds of gubernatorial nominations to dozens of boards and commissions, and the full Senate voted on the amended list. This summer Senate leadership dispensed with a full Senate vote.

Frieden may have declared it constitutional, but the Privileges and Elections Committee action in June clearly represents a change from previous practice. In another raw assertion of legislative power, Senate Majority Leader Scott Surovell, D-Fairfax, has warned the University of Virginia Board not to appoint a new president to replace ousted President Jim Ryan until next year, implying than any choice will have to meet the approval of the next governor, presumably Democrat Abigal Spanberger.

The VMI Board also is searching for a new superintendent after declining to renew the contract of Cedric T. Wins, who had been appointed by Gov. Ralph Northam.

In the conclusion of his ruling, Frieden wrote:

The Senate of Virginia delegated to its Committee on Privileges and elections the responsibility of considering the resolution to confirm gubernatorial appointees to the governing boards of George Mason University, the University of Virginia, and the Virginia Military Institute
and deciding whether (and how) to bring that resolution to the Senate floor for a vote. By voting 8-4 to not report the confirming resolution, the Senate Committee on Privileges and Elections rejected those appointees on behalf of the Senate.

Because confirmation of a gubernatorial appointee requires the majority vote of a quorum of each chamber of the General Assembly, the action of the Senate committee manifested the General Assembly’s “positive unwillingness” to make the requested confirmations and constituted
a refusal to confirm under the Constitution of Virginia. Accordingly, the Constitution of Virginia required the rejected appointees to immediately cease their participation on their respective boards. They have not done so.

I asked Ken Cuccinelli, who will lose his spot on UVA Board, for his reaction.

It was this:

— JAB