As lawmakers appoint Virginia judges, old questions surround opaque process
Several local judges set to be approved by the General Assembly this week received mediocre marks in recent evaluations by local attorneys. Their pending approval is drawing renewed attention to a process that critics say is opaque and subject to potential conflicts of interests.
Virginia is one of only two states, along with South Carolina, where lawmakers choose judges. Lawmakers from a particular locality choose judges to serve that jurisdiction. Often that happens in private, though Fairfax County has created a formal application process where candidates are vetted and scored by the Fairfax County Bar Association. The rest of the General Assembly almost always rubber-stamps the delegation’s picks.
The system of appointments dates back to at least the Byrd Machine era of segregationist Democrats, according to Del. Ken Plum (D-Fairfax), the longest-serving lawmaker in the legislature. The machine used circuit court judges to enforce voter suppression and entrench white supremacy. Plum says transparency has improved since he was first elected in 1978, when he says party bosses often called the shots and local lawmakers regularly appointed a spouse or law partner to the bench. Still, he says the process is flawed.
“Legislators – who are lawyers – are gonna pick the judges before which they practice,” Plum says. “You start to wonder if that’s a good process at all.”
A new tool
Over the last decade, evaluations of judges completed by local attorneys and court staff have given lawmakers a new data point and opened new lines of questioning in judicial interviews – one of the few moments the public gets a glimpse at judicial candidates. The scores, compiled by the Judicial Inquiry and Review Commission, include marks on items like patience, courtesy and fairness.
One judge up for appointment – Fairfax County General District Court Judge Michael Cantrell – withdrew from consideration after several lawmakers in December questioned his evaluation results; he scored last among 50 local judges. But several other judges with scores in the bottom 10% are still up for reappointment, including Fredericksburg Circuit Court Judge Victoria Willis, Richmond Circuit Court Judge Mary Langer, Loudoun County Circuit Court Judge Jeanette Irby and Fairfax County General District Court Judge Mitchell Mutnick.
JIRC says the evaluations, which include a variable number of attorneys and court officials, are not meant to be compared.
Mutnick in particular has inspired resistance after his last performance review in 2015 also showed low scores in some categories. His critics include Fairfax attorney Andi Geloo, who says Mutnick told her to “shut up” in a meeting — a moment she described as “public shaming.” Geloo said she’s seen him talk down to other women and people of color and that she’s collected reports from other lawyers in Fairfax who didn’t want to speak publicly for fear of courtroom retaliation. Geloo says she passed along that information to Fairfax representatives, including Sen. Scott Surovell (D-Fairfax) and Sen. Chap Petersen (D-Fairfax).
“If he still then gets pushed through, it's about protecting him and his job,” Geloo said.
Mutnick did not respond to a voicemail seeking an interview. But questioned by lawmakers in December over low scores for “patience” and “respect,” he said he’d tried to strike a pandemic balance between efficiently moving through a docket and respecting attorneys and clients. He also said the decision by Fairfax’s progressive commonwealth’s attorney to not participate in the prosecution of certain misdemeanor offenses had increased his workload.
“I'm not trying to make an excuse for my actions,” Mutnick said. “But it was a rough year with COVID and a couple other changes. So I'm trying to do the best I can.”
Surovell says the judicial evaluation scores were a relatively new tool for lawmakers in the last decade. He said if a score presented a red flag, he often talked to bar lawyers and judicial candidates to get more information. But he said they’re not scientific and not meant to be used as a “bright line” dividing candidates. And Surrovell dismissed concerns about potential conflicts of interest, arguing that having citizens elect judges presents thornier problems.
“A lot of states have judicial elections where the lawyers who appear in front of the judges write them a check,” Surrovell said. “Then the judges have to go out and campaign for their job. I think that's way more destructive of integrity than the way we select in Virginia.”
As for Judge Mutnick, Surrovell said all of the roughly two dozen members of the Fairfax delegation opted to keep him in the mix after separate meetings of the House and Senate delegations: “Each chamber decided based on the input they received that they didn’t want to do anything.”
In 2015, a bipartisan ethics commission convened by former Gov. Terry McAuliffe recommended “a comprehensive, consistent and professional process for evaluating candidates for judgeships” using Fairfax County as a model. That system, it noted, would go a long way in “reducing partisan and political considerations and increasing public confidence in the process.” Those recommendations have yet to be adopted.
University of Richmond law professor Carl Tobias said Virginia’s system presents potential conflicts of interests. Lawmakers sometimes introduce judicial candidates as friends.
“The members of the legislature feel that the judges are their judges,” he said. “They speak of them in those terms, which is interesting.”
Still, Tobias said allowing voters to elect judges creates its own pitfalls, including the flood of cash involved in some of those races. He said a better system would be allowing governors to appoint judges in a system that mirrors the one used at the federal level, though Surovell argued that “injects a whole different level of politics into the system.”
And Tobias said while evaluations were important, they may not give a full picture of a judge’s performance given the types of cases they hear or grudges lawyers may carry from past cases.
Some lawmakers have tried to access more specific complaints. In December, then-Del. Mark Levine filed a lawsuit against JIRC, the body that receives complaints on judges. Levine said JIRC failed to hand over complaints that lawmakers are entitled to see under state law. The Supreme Court of Virginia dismissed Levine’s case for lack of standing after his term ended in January. But Sen. Joe Morrissey (D-Richmond) said he plans on pressing for access to the complaints after lawmakers wrap up this session.
“We’re entitled to any information associated with a complaint,” Morrissey said.
Levine, who lost his seat after an unsuccessful run for lieutenant governor, said he faced pushback from other lawmakers who said he’d “humiliated” judges by questioning their low scores. But the liberal talk show host said it was necessary.
“When you present yourself to decide very important issues – whether someone loses their freedom or not in a criminal case – you require public scrutiny,” he said. “God knows people complain about Mark Levine all the time. And I can take it. I put myself in that position.”