Dems To Transform Virginia Appeals Court, Largely Behind Closed Doors

By Whittney Evans

Published August 5, 2021 at 4:51 PM EDT

building facade — The Virginia State Capitol building at night. (File Photo: Craig Carper/VPM News)

Virginia’s democratic majority will select eight new judges this special session to fill vacancies on the court of appeals. And much of that process is happening behind closed doors.

There’s expected to be a public certification hearing next week, where the candidates will be interviewed, but only after the 8 finalists have been selected.

“That’s how it’s always been done for the appellate courts,” said Sen. Scott Surovell, who sits on the Senate Judiciary Committee. “The certification interviews [are] an opportunity for everyone to ask questions and for the public to have input.”

Legislators elect Virginia’s judges when a vacancy occurs or a new seat is created.

The Virginia Court of Appeals, located in downtown Richmond, hears cases that have been decided by Virginia’s 31 circuit courts.

The General Assembly passed legislation last year that guarantees Virginians have the right to appeal their civil cases. That means they’ll no longer have to petition for an appeal and perhaps be denied. Until this year, Virginia was the only state in the nation that didn’t provide that right in every case.

But the change means lawmakers will need to add more judges to take on an increased workload. They’ve created six vacancies by expanding the court from 11 to 17 judges, and the seat of former appeals court judge Rossie D. Alston Jr., must also be filled. Alston was nominated by former President Donald Trump to be a federal judge in the Eastern District of Virginia.

Republicans unanimously opposed the appeals court expansion, largely because it's an election year.

“This is a major shift in the embodiment of that court,” said J. Garren Shipley, a spokesperson for House Republicans leaders. “We believe we have a very good chance of taking the majority back this November and there is a concerted effort, on their part, to do as much as they can while they have the majority.”

Republicans have complained throughout this process that they haven’t had enough input and have been excluded from discussions

“The Democrats have played this process very close to the vest and I believe that is in no small part to the fact that a lot of our members objected to the expansion of the court in the first place,” Shipley said.

Democrats maintain they've handled the process no differently than GOP majorities in the past.

University of Richmond law professor Carl Tobias said the secretive nature of the process has some concerned about efforts to ensure a diverse slate of judges -- in terms of race and gender, but also regional diversity.

“I think you’re going to see the Northern Virginia legislators wanting to have more of their people,” Tobias said. “And Fairfax county is a fifth of the state’s population. I understand all that. But that leaves other places without any judicial representation. And that’s not required, but it’s nice to do if you can.”

In a review, VPM found potential appointees were more likely to be from Northern Virginia than any other region, but the pool also includes people from Southwest Virginia, Hampton Roads, Central Virginia, and Southside.

Sen. Surovell said the pool of candidates is limited to applicants who have been vetted by the Virginia State Bar. The Bar submitted 45 recommendations to the General Assembly last month following recent interviews, but Virginia Lawyers Weekly reports that VSB also submitted the names of candidates they considered in previous years, going back to 2007.

Here’s the list of those recommendations: