by Dick Hall-Sizemore
The Virginia Senate Democrats have acted irrationally. They have refused to confirm four of the five appointments made by Governor Youngkin to the Parole Board. This action was in retaliation for the House refusing to confirm 11 appointments made by then-Governor Northam last year, including those to the Board of Education and the State Water Control Board. The only Parole Board appointment confirmed was that of retired judge Chadwick Dotson to be the board chairman.
Until new members are appointed by the Governor, no decisions will be made on the cases of those offenders who are eligible for parole consideration and a backlog will be created and grow. Furthermore, the Parole Board hears the cases of offenders on parole who are charged with “technical violations,” that is, violation of their terms of parole, but not charged with the commission of a new crime. Each month, the Board considers several hundred parole and parole violation cases.
In summary, until the Parole Board has additional members some offenders will not be granted parole and accused parole violators will remain in jail, awaiting a hearing. It is fairly certain that this is not a result that many Democrats would want.
In theory, the Parole Board could function without any additional appointments. The law says that the Board shall consist of “up to five members.” The rule of the Board provide that it takes the vote of three members to grant parole. Those rules can be changed with the approval of the Governor. Therefore, a situation could be created in which the chairman, as the sole member, would constitute the Parole Board and would review and make decision on all parole cases, as well as hold all revocation hearings, meet with victims, and carry out all the administrative duties of running an agency. Practically speaking, however, it is doubtful that Judge Dotson, or anyone, for that matter, would be willing to take on such a workload and would probably resign rather than do so.
Beyond the practical results, the refusal to confirm the governor’s appointments is a bad decision as far as public perception is concerned because the prior Parole Board had lost all credibility.
According to an old saying, “Revenge is a dish best served cold.” If they wished to retaliate for the snub of Northam’s appointees, it would have been better for the Senate Democrats to have waited until the 2023 Session, when they could have refused to confirm Youngkin’s appointments for those positions.
This tit-for-tat on appointments could get uglier. The House Republicans also refused to confirm Northam’s appointment last year to fill a vacant SCC judgeship. Also, there are two pending vacancies on the state Supreme Court to fill. If the two parties do not agree on nominations for these posts by Saturday, when the legislature is scheduled to adjourn, Governor Youngkin would be able to make interim appointments to those judgeships, subject to General Assembly confirmation in the 2023 session.
There are three scenarios that could play out. One, Youngkin makes the appointments and the General Assembly confirms them next year. Two, Youngkin makes the appointments and the Virginia Senate refuses to confirm all or some of them next year. Three, the Senate refuses to adjourn and instead insists on going into recess.
Under the provisions of the state constitution, neither house can adjourn without the consent of the other. Furthermore, the constitution authorizes the governor to fill a vacant judgeship when the General Assembly is not in session. If the legislature is in recess, it is still legally in session and the governor is prevented from making any appointment to a vacant judgeship. The General Assembly is very protective of its prerogative to elect judges and both sides have resorted in the past to the tactic of going into extended recess, rather than adjourning, to keep the governor from filling vacant judgeships.
The sniping over appointments could escalate into a serious impasse unless the two sides tamp down the rhetoric and reach a bipartisan compromise. In past years neither Todd Gilbert, Speaker of the House, nor Dick Saslaw, Senate majority leader, have shown the temperaments needed to do that. (Saslaw spent much of the past two years feuding with the previous Speaker, who was a member of his own party.) Someone else needs to step in to cool the situation down and broker a compromise.
