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IMPEACH AG HERRING? LET’S consider a different idea: CENSURE instead

I am deeply disappointed that not only will our Attorney General Mark Herring refuse to defend the state constitutional provision prohibiting gay marriages and civil unions but agrees with the plaintiffs!  Now he might be right; the courts might not uphold it.  But that decision would have a greater acceptance among the people if there was a vigorous defense from our Commonwealth.  After all, the segregationists had one of the finest appellate advocates (my hero John W. Davis) up against another hero of mine, Thurgood Marshall for the Brown v. Board case.  This was the legal equivalent of that big game coming up on Sunday!  No one has seriously contended Davis was derelict in his duty.  (By the way, Davis took the case without fee – what we lawyers call pro bono work.  Bet the pro bono advocates – and every lawyer ought to try to find some time to donate to the community – won’t claim that effort!)

I have blogged on this before.  Essentially, I said, (applying it to AG Herring) that if Herring could not conscientiously defend the state law or constitutional provision, he must enter an appearance in the court and ask the court to appoint someone – at state expense – to defend the law.  I am sure there are many Virginia lawyers that would defend the law.

I also have blogged on marriage:  Marriage should be removed from the Virginia code and replaced with a civil union for gays and straights.

BUT the law must be defended.

Here is the draft impeachment resolution for AG Herring from Bearing Drift.

But, as I suggested to a member of the House of Delegates yesterday, why not censure, instead?

Impeachment is certainly appropriate to this situation but it is ultimately a political remedy.  It also requires a 2/3 vote in the Senate.  We know that this won’t happen.  It will aggravate partisan tensions and the Republicans will be blamed.  Overreaching can be as bad as doing nothing.

But censure only requires a majority of both houses and perhaps a Democrat or two in the Senate might agree that the Attorney General should be censured.  Censure is also a political remedy and it arms Herring’s opponent (either for AG or Governor) with a weapon to use against him.

The Attorney General surely hopes and assumes that the Supreme Court will give him cover for his actions.  But it may not come quickly enough for his next election.  Censure will be a powerful club and would send the message.  And if Governor McAuliffe helps Herring, he can be mentioned in the censure resolution as in effect an un-indicted co-conspirator.  Censure also forces the Lt. Governor to take a stand on this question, too:  Are you Virginia Democrats or California ones?

About Elwood Sanders

Elwood “Sandy” Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia’s first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

8 Responses to “IMPEACH AG HERRING? LET’S consider a different idea: CENSURE instead”

  1. W.S. Wright says:

    HELLO FOLKS! Close to 60% of Virginians spoke LOUD and CLEAR when they voted for Marriage being b/n “One Man and One Woman (period)!” And you can even keep your spouse if you like your spouse (period) 🙂

  2. B.W.Davis says:

    Censure in lieu of impeachment of Herring for refusing to follow a referendum that was passed into law by over 66% of the voting public is akin to sending Judas to his room for betraying Jesus Christ.

    Censure is nothing more than a meaningless political get out of jail free card and in Herring’s case would be worn as a badge of courage and honor.

    I harbor no illusions that the republican members of the general assembly will do anything, other than what they have done to-date, and that would be nothing, except for a few impotent remarks before disappearing into the ever thickening fog called politics as usual.

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    Tom White Says:

    Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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