- The Washington Times - Saturday, March 21, 2009

RICHMOND | Nearly four decades ago, a commission that revised the Virginia Constitution decided not to reform the secretive backroom dealings that chose state judges because there wasn’t evidence the process was creating a bad judiciary.

Although the process has become more open in recent years, critics are demanding an overhaul - or at least a serious review - of the way Virginia chooses its judges.

Some argue that the system is too secretive and that many legislators are lawyers who practice before the judges they select. Others cite the bitter feuds among legislators that have recently prevented some judgeships from being filled.

“Right now, most of the meetings are still going on behind closed doors,” said Elizabeth Haring, founder of the Pitchfork Rebellion, an organization that wants term limits and a more thorough review of a judge’s performance or a candidate’s credentials. “The public has no way of knowing on what basis they are appointing these judges.”

Virginia and South Carolina are the only states where the legislature chooses judges, according to the National Center for State Courts. In other states, judges are elected by voters or appointed by the governor, sometimes with input from a nonpartisan judicial nomination commission.

In Virginia, the party that controls the General Assembly chooses judges for the two statewide appellate courts and the State Corporation Commission in private caucus meetings. Approval on the floor in public view is typically a formality.

Lower-court judges are chosen by their local legislative delegation, usually with input from the local bar association, then forwarded to the legislature for approval.

Ms. Haring and her group said the local delegation meetings where judgeships are discussed aren’t always open to the public. If they are, they’re often hard to find.

“The point they do make, which is something we need to improve, is that it’s too difficult to find out when judges are up for appointment and when they can speak,” said Delegate David Albo, Fairfax Republican, who chairs the House committee that interviews judicial candidates.

He said the committee might start posting that information on the Internet, but he’s not convinced a fundamental change in Virginia’s system is necessary. In fact, he said it works far better than would a system that allowed voters to elect judges.

“That system is ludicrous,” Mr. Albo said. “The only people who usually contribute to those campaigns are lawyers and big businesses, then they go before a judge after they’ve contributed money to them. Compared to that, our process is a lot better.”

A.E. Dick Howard, a University of Virginia law professor, agreed. He presided over a commission that considered the same questions in 1971 when revising the state constitution. The commission concluded that there was no evidence the process produced a bad judiciary and left intact one of the legislature’s most important constitutional powers.

But he said the issue is again ripe for reconsideration.

The process has become more contentious in a now-divided General Assembly. Republicans control the House and Democrats the Senate. Last year when deadlocked legislators adjourned without appointing three statewide judges, Gov. Tim Kaine had to step in and fill the posts.

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