RICHMOND — Senate Majority Leader Tommy Norment said Wednesday that it may be time to change the way Virginia chooses judges
He's no stranger the controversy and acrimony the current process breeds. It gives the General Assembly's majority party great power, and Norment is always in the thick of things.
But on Monday the House and Senate couldn't agree on a slate of new Supreme Court and Court of Appeals judges, and members were forced to recess their special session without a resolution. New elections may have to wait until January, but the General Assembly technically remains in session, which keeps Gov. Terry McAuliffe from being able to make appointments.
Among the appeals court candidates is Circuit Court Judge Richard Y. AtLee Jr., who is based in Yorktown. AtLee's name was added to the list of candidates late in the process – so late that he wasn't interviewed by the Virginia State Bar, which ranks candidates before they're forwarded to the General Assembly for perfunctory interviews.
Norment, R-James City, said Peninsula attorneys he declined to name encouraged him to add AtLee when it appeared a third seat was opening on the Court of Appeals.
Two seats already were certain to come open: Appeals Court Judges Walter S. Felton Jr. of James City and Robert P. Frank of Newport News have hit the mandatory retirement age of 70. Then a third judge, D. Arthur Kelsey, seemed to be the legislature's lone candidate to replace retiring Chief Justice Cynthia Kinser on the Virginia Supreme Court.
He was the only judge legislators formally interviewed for the position, though a number of legislators said they wanted to see more interviews. This contributed to Monday night's showdown, and a delay for final decisions.
Norment is close with AtLee's father, attorney Richard Y. AtLee Sr. Both attended Virginia Military Institute, and AtLee Sr. has given nearly $28,000 to Norment's political campaigns over the years, according to the Virginia Public Access Project, which aggregates this information.
AtLee Jr.'s mother, Isabel, is a retired judge.
Norment said the AtLee family has "never, ever had a conversation with me about (AtLee Jr.) being a judge at any level," but he's not surprised to have the connection questioned.
"Nothing nefarious has happened here," Norment said Wednesday. "There's nothing — no deals cut from behind doors, there's no influence from campaign contributions. ... I wish sometimes that I had the influence that people pretend that I have."
This isn't the first time Norment has backed AtLee, who was named a circuit court judge in 2011. He filled a seat that was vacant for two and a half years, at least partly due to a long-running dispute between Norment and then Del. Tom Gear, R-Hampton.
That battle ended with Gear's retirement. It followed a separate fight over Peninsula judgeships complicated by Gear's push to put his sister on the bench.
Gear said Wednesday that Norment "has pushed Richard from day one and he would never give any consideration to anybody else."
Attempts to reach AtLee Jr. and his father were not successful this week. Another Peninsula candidate for the appeals court, Hampton Circuit Court Judge Christopher Hutton, declined to comment for this article.
Hutton was interviewed and rated "highly qualified" by the Virginia State Bar, but wasn't invited to interview before the joint House and Senate Courts of Justice Committee, which forwards a carefully negotiated candidate list to the full General Assembly for a vote. Del. David Albo, who chairs the House Courts of Justice Committee, said Hutton and others weren't invited because they didn't have enough votes.
"These are highly accomplished professionals," said Albo, R-Springfield. "And I'm not making some guy take all day to come to Richmond to interview for a job he'll never get."
The committee interviews last just minutes per candidate, and they're open to the public. The actual decision-making is more opaque. Monday's deal fell apart in part because younger legislators chafed over a process overseen by Norment, who heads the Senate Republican Caucus, and other senior leadership.
In response, Norment said the Senate Courts of Justice Committee would interview more candidates. Albo said the House committee doesn't plan to follow suit, leaving the matter in limbo.
The state constitution empowers the General Assembly to elect judges by a majority vote, and the candidate list often gets whittled down behind the scenes in negotiations that include House and Senate leaders, with some deference to local legislators on circuit and district judgeships.
"A terrible, terrible system," said Joe Condo, who chairs the state bar's Judicial Candidate Evaluation Committee. "We're fortunate that that we've got the judges that we've got with this Rube Goldberg system."
Norment said Virginia is the only state that selects judges this way, and the last few days made him rethink it. He said students in his law class at the College of William and Mary questioned him on it recently and the the idea of changing it is gaining momentum among the General Assembly's younger generation.
As recently as September Norment defended the process, calling it "pretty transparent," though not without "some vagaries." On Wednesday, Gear questioned Norment's newfound willingness to change.
"He might make some minor changes, but he's not going to do anything to give that power up," Gear said.
Norment said he's "perfectly willing to go to a different form of selecting judges."
"Tom is certainly entitled to espouse whatever believes, but I don't think he really knows what's going through my mind," Norment said.
McAuliffe has taken up the issue as well, asking a recently appointed ethics committee to consider the issue. That committee meets Friday, though it has not yet turned its attention to judicial races.
A number of people who follow judicial elections would welcome a change, but don't want a switch to popular elections. Many states use that method, but it's hard for the public to know who is and isn't a good judge and, in high-profile races, outside money flows in to influence the vote.
"That's the worst idea ever," Albo said.
"The worst of all possible scenarios," Condo said.
Condo said he'd like to see the General Assembly or the governor choose judges from lists put together by a statewide panel.
"I think that would be fantastic," he said.
"But they can put anybody on that court that they want and it is a prerogative that is jealously guarded by the General Assembly," Condo said. "And they're not going to give it up if you sprayed them with mustard gas."
The most important thing is to get good judges, and Condo said the current system typically works out, even if it's an ugly process. Peter Vieth, an attorney and news editor for Virginia Lawyers Weekly, agreed.
"I've always said it's the worst possible way to elect judges, except for all the others," Vieth said.
"There's a lot of horse trading going on," he said. "The choices are made in back rooms."
Fain can be reached by phone at 757-525-1759.