- Associated Press - Thursday, June 23, 2011

RICHMOND — The General Assembly’s failure to fill two Virginia Supreme Court vacancies has prompted concerns that some litigants will have to wait longer to have their cases decided.

House Republicans and Senate Democrats have been deadlocked for months over the appointments, forcing the seven-member court to operate with just five active justices. Rather than spread themselves too thin and risk compromising the quality of their work, the justices are hearing fewer cases until the vacancies are filled.

Chief Justice Cynthia Kinser said in an interview that the court is hearing six to eight fewer cases per session.

“Some cases will be on the docket longer,” she said.

The vacancies were created by the retirement of Justice Lawrence Koontz Jr. and the February death of Justice Leroy Hassell Sr.

Ordinarily, the governor would fill the vacancies if the General Assembly failed to do so before adjourning. But lawmakers shifted immediately from regular session into a protracted special session on redistricting, dragging the judicial stalemate into the summer.

Justice Koontz is one of four justices who have taken “senior” status, which means they are essentially retired but can be called upon to hear cases when necessary. With two vacancies, the court is relying more on its senior justices.

“We are working a lot more,” Senior Justice Elizabeth B. Lacy said. But she said she doesn’t consider the extra duty burdensome, partly because she greatly appreciated the contributions of senior justices when she was active. Her concern, she said, is more for Virginia’s citizens.

“The issue of access to justice and the timeliness of justice has been such an important core value of the judicial system in the commonwealth,” she said. “It’s important to people to bring closure to their problems. So it’s hard to say, ‘Gee, I’d like to work less’ when that kind of challenge is facing the court. Of course, I hope that challenge can be met the way it was intended to be met — with a full complement of justices.”

Even with a roster of senior justices to help out, the court has had to operate short-handed at times. Only the five active justices heard most of the arguments during the June term because of scheduling conflicts, and the vacancies have strained the court’s ability to consider which cases it will hear in the future.

Justice Kinser said three, three-member “writ panels” typically are assembled to consider appeal petitions. That means every active and senior justice would have to be available. Kinser said the court already has been unable to put together three writ panels on one occasion, and “it will probably happen again.”

Delegate David Albo, a key lawmaker in the judicial selection process, said he is aware of the hardships created by the legislature’s failure to fill the vacancies. But he added: “I’m not going to capitulate and put a liberal judge on the bench just to solve the problem.”

The Republican-controlled House wants to promote Virginia Court of Appeals judge Elizabeth McClanahan, while the Democrat-controlled Senate is supporting state appellate Judge Cleo Powell.

Mr. Albo, Fairfax Republican, said the House GOP is willing to let Senate Democrats choose one justice but, in return, wants the final say on both resulting Court of Appeals vacancies. The Senate has refused.

Mr. Albo said Republicans should get more picks because they control both the House and the governor’s office. He said the House GOP has no incentive to give in to the Senate because if no deal is reached by the time the General Assembly adjourns, “the governor is going to put someone on we like, I’m sure.”

Sen. John Edwards, Roanoke Democrat, said he doubts the House would really be content to let Gov. Bob McDonnell make the appointments.

“I think it would be better — and the House leadership seems to agree — if a few of us could sit down and come to a conclusion. But then the question is, can you sell it to your respective caucuses?”

Virginia and South Carolina are the only two states whose judges are all elected by the legislature.

It’s not uncommon in Virginia for the governor to make appointments, either because of legislative deadlocks like the current one or because vacancies occur while the General Assembly is not in session. Three of the five active Supreme Court justices were gubernatorial appointees who later had to be confirmed by the General Assembly.

What is unusual, however, is to have two Supreme Court vacancies at once and a seemingly never-ending legislative session that keeps the governor from filling the slots.

Mr. Albo said it’s looking increasingly likely that Mr. McDonnell eventually will make the selections.
McDonnell is preparing for that possibility. He is soliciting applications on his website and could begin interviewing candidates later this summer, spokesman Jeff Caldwell said.

Although the legislature would still have the final say on any judge appointed by the governor, confirmation historically has been a mere formality. Even the most fiercely partisan lawmakers have been disinclined to reject someone who has quit his or her job to accept an appointment. However, Edwards conceded that “it could happen.”

Meanwhile, the Supreme Court soldiers on with limited manpower — and Virginians seeking their day in court may have to wait.

“This is the constitutional duty of the legislature,” Justice Lacy said. “As a citizen, if you had a dispute over commercial property, or wills and estates or a criminal appeal — that is just something that should not be treated lightly in terms of resolving it.”

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