I am sick over this whole thing with the judge candidate in Richmond. Delegates I respect and admire greatly led the drive to keep Tracy Thorne-Begland off the General District Court. I understand their reasons – the fear of judicial activism – that is not illegitimate BUT it is unlikely that a court NOT of record can have any meaningful impact on the laws of the Commonwealth. But I am afraid it backfired. Furthermore, it is not right to reject a judge solely because he or she is gay. Tracy Thorne-Begland said he would not vote on gay-related issues. I do not know him but trust him to be a good judge.
I feared when I saw the Family Foundation email there might be an ugly scene and sure enough, I was right. I do not believe all the opponents of Thorne-Begland were animated by evil or bigotry. Maybe some. But not all. There is not a bigoted bone in the body of Bob Marshall or Rich Anderson or John Cox. But it is impossible to win this battle in the media. It’s Terri Schiavo all over again! I submit that the Terri Schiavo disaster cost the GOP the suburban women’s vote. I remember seeing the press conference with Tom Delay and other GOP leaders discussing the Schiavo case and thinking: This is outrageous. It was over the top to pass a specific bill to favor one family. I do agree the state court judge should have reconsidered whether the husband living with another woman with kids of their own was a fit person to decide the wishes of his wife, Terri. But the courts disagreed. I respect that. Congress should have stayed out; it was arrogant for them to decide another person’s situation like that.
The vote for Thorne-Begland was 33-31 in favor and the reports were that the House had to have 51 votes to confirm a judge. Here are what appears the pertinent provisions of the state constitution on this question:
The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years. During any vacancy which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the General Assembly. Upon election by the General Assembly, a new justice or judge shall begin service of a full term. (Va. Const, Article VI, Section 7)
The General Assembly may provide for additional judicial personnel, such as judges of courts not of record and magistrates or justices of the peace, and may prescribe their jurisdiction and provide the manner in which they shall be selected and the terms for which they shall serve. (Va. Const., Article VI, Section 8)
A majority of the members elected to each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and shall have power to compel the attendance of members in such manner and under such penalty as each house may prescribe. (Va. Const., Article IV, Section 7)
Now I understand that Lt. Governor Bill Bolling says in his letter to the General Assembly at the beginning of the session that he could not cast a tie-breaking vote on judges because it must be the members elected:
Given that I have answered the question as to whether I can cast a tie-breaking vote on organizational matters, I now turn to the question of whether I am empowered to cast a vote when there is a tie on the final passage of a matter which specifically requires a majority of the “members elected” to the Senate to pass.1 There are numerous such provisions in the Constitution, including:
Article VI, § 7, which provides that justices of the Supreme Court of Virginia and the judges of the Commonwealth’s inferior courts “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly . . . .”;
Who am I to object to the Lieutenant Governor who was once the supervisor in my district? I am just a mere lawyer and I have not fully researched this question. But here’s how I see it – he’s right for the wrong reasons: I agree all the appellate courts as well as Circuit Courts, who are courts of record, are subject to Article VI, Section 7. But General District Courts are NOT courts of record and thus the provision of Va. Code Section 16.1-69.9 (authorized by Article VI, Section 8) also requires all the district courts to be by the majority of the members elected.
However, the bill to appoint Tracy Thorne-Begland DID get two more yes votes than noes. It was a quorum. The absent members (26, enough to elect Thorne-Begland) could have been called back to vote – by force if necessary. Let me restate the clause “…shall have power to compel the attendance of members in such manner and under such penalty as each house may prescribe…” (Article IV, Section 7) Let’s have a revote on tbis. The Governor could even call a special session to handle it.
I see that Delegate Albo voted with the majority. We should trust Albo. I think he can move for reconsideration. Let’s take care of it and vote Tracy Thorne-Begland to the General District Court. If he breaks his word and becomes a judicial activist, six years from now he can be voted out by the General Assembly. Both legislative committees approved him and he was previously vetted. It’s too late to bring this up now. The Family Foundation and other groups should assist in the vetting process at the outset and avoid a ugly scene.
In the event the General Assembly does not fill the General District Court position, the chief judge of this circuit can appoint a temporary judge until next term of the legislature. Appoint Tracy Thorne-Begland to the General District Court.