- The Washington Times - Monday, June 6, 2011

Legislators say the most sizable vacancy in the Virginia Supreme Court’s history isn’t going to end soon — with two of seven seats unfilled for four months.

Partisan disagreements between courts committees in the Democrat-led Senate and the GOP-led House have stood in the way of filling the spots, as each side has turned down the other’s nominations.

Gov. Robert F. McDonnell, a Republican, could step in and make the appointments himself.

“They don’t like anything we like, and we don’t like anything they like,” said Delegate David B. Albo, Fairfax Republican and chairman of the House’s Courts of Justice committee.

The three top judges under consideration are state Court of Appeals Judges Elizabeth A. McClanahan, Cleo E. Powell and D. Arthur Kelsey. While both sides seem to agree on Ms. McClanahan, Senate Democrats have rejected Mr. Powell and Mr. Kelsey. House Republicans also have turned down a number of candidates.

The governor can make an appointment only when the legislature is not in session. Mr. Albo thinks that will be the most likely outcome.

The process is so charged that justices in recent history have been appointed by the governor more frequently than elected by the General Assembly. Of the five sitting justices, only former Attorney General Bill Mims was elected. Chief Justice Cynthia D. Kinser and Justice Donald W. Lemons were appointed by former Gov. George Allen, a Republican.

Justices S. Bernard Goodwyn and LeRoy F. Millette Jr. were appointed by former Gov. Timothy M. Kaine, a Democrat.

“Appointment of judges is probably the ugliest part of the political process in Virginia, aside from redistricting,” said Sen. R. Creigh Deeds, Bath County Democrat and a member of Senate’s Courts of Justice Committee.

Mr. Deeds said the simultaneous compromise offers lawmakers a “reasonable compromise.”

Senate Democrats may choose one candidate, and House Republicans may choose the other, but he acknowledges that the GOP doesn’t have much to lose by continuing the gridlock.

“There’s a partisan incentive to just hang out, and maybe that’s what they want to do,” Mr. Deeds said. “I would think people would take pride in the whole legislative prerogative and what they’ve been elected to do.”

Sen. Henry L. Marsh III, Richmond Democrat and the chamber’s justice committee chairman, doesn’t share Mr. Deeds’ optimism that legislators will reach consensus.

“I’m not sure whether the impasse will be resolved,” he said. “I don’t know … anything could happen when we get together.”

Justice Lawrence Koontz retired in January, and Supreme Court Justice Leroy Hassell Sr. passed away one month later. The dual vacancies are unprecedented in Virginia history.

The last time two Supreme Court seats were simultaneously empty was in 1969, and it was only for one day, according to the Supreme Court of Virginia.

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