Defending Gov. McAuliffe: A Proposal on the Virginia Supreme Court Justice, Redistricting


    The GOP thinks they have T-Mac over a barrel. Here is a conceptual proposal to fight back.

    By Paul Goldman

    Governor McAuliffe, as all Virginia chief executive’s before him, exercised his constitutional authority to appoint Jane Marum Roush, formerly a judge on the Fairfax Circuit Court, to the Virginia Supreme Court. A vacancy in the High Court occurred while the State Legislature was not in Session. Pursuant to the Virginia Constitution, Governor McAuliffe filled the vacancy with now Justice Roush on July 27. The Republican dominated State Legislature cried foul on the ground he had not first sought their advice before making the appointment. Pursuant to a federal court order, the Governor has called the General Assembly into Special Session starting Monday to redraw new congressional district boundaries to replace the ones declared unconstitutional earlier this month.

    Once in session, the Virginia constitution permits the General Assembly to exercise its power to replace – if it so chooses – Justice Roush, whose gubernatorial appointment only had temporary legal effect unless approved by the General Assembly.

    The Republicans had asked the federal court to delay their Special Session order until the U.S. Supreme Court decided whether to hear the GOP’s appeal asking the Justices to overturn the lower’ federal court’s redistricting decision. But the U.S. Supreme Court denied this appeal on August 5th.

    This, then, is the very unique chain of events that apparently will lead to Justice Roush having the shortest Virginia Supreme Court tenure in history. If dumped, she would not be able to reclaim her old Fairfax Court position. This apparently is unprecedented at least in modern times.

    In attacking the Governor, the GOP is selling “wolf tickets” in this matter. We are surprised so many have bought this Republican spin.

    But do the logic.  It doesn’t take Bobby Fischer to see through this GOP spin move.

    If the Governor had talked to GOP Legislative Leaders, he would have in effect given them a veto of his choice. Why?

    Let’s be real: The GOP would have told the Governor they didn’t want Rouse, and would have asked him to find someone else. This would leave the Governor with two choices. If he appointed her over their objections, the GOP would reject her later and blame their action on his failure to listen to them. That is to say: The GOP would have said McAuliffe brought it on himself.

    But what about option two? If, on the other hand, he refused to nominate her in hopes of placating the GOP, then in effect they would hold a veto over his choice.

    Accordingly, the Governor did the right thing: He appointed the person he thought best for the job. But for the Special Session, she would have had a chance to build a record and thus it would have been harder for the GOP to justify dumping her.

    The point being: Those saying McAuliffe should have asked for the GOP’s advice are in effect turning the Governor into a legislative errand boy. Governor McAuliffe therefore did the right thing in making his pick his way. That’s his job. If the state legislature wants to reject it, then so be it: the Governor can’t control what they will do.

    Is the General Assembly playing hardball here? Of course they are, that’s the nature of politics. They think they have the Governor over a barrel.

    I disagree. My advice to T-MAC is this: Show them Democrats can play the game too.

    First, he should cancel the Special Session starting August 17.

    Second, he should petition the federal court for a delay to allow him to first create a non-partisan Committee to draft the required new congressional redistricting plan. Since the GOP wanted a delay, they can hardly object. The Governor should tell the federal court the public wants to remove redistricting from the partisan process. By using this opportunity, the Governor believes his non-partisan redistricting Committee will show such an approach can benefit Virginia.

    Third, since the federal court gave the Governor until September 1 to call the Special Session, he is within his rights to cancel the Special Session and make his appeal for a non-partisan body to draft the new plan.

    Fourth, if the lower court refuses his request, he can appeal to the Supreme Court on federalism grounds, saying the Federal judiciary should give state’s the widest possible latitude on redistricting, an inherently state function. There are several Justices who have indicated an interest in removing partisan politics from this “gerrymandering” process. He might very well find the 4 needed to force the Supreme Court to hear his appeal.

    These practical and principled proposal points if adopted by the Governor and the courts will still insure new congressional district lines in time for the 2016 elections while at the same time keeping Justice Roush on the bench until the General Assembly meets in Regular Session next January. Again: She will have a fuller record as a Justice, and it would be harder for the Republicans to play hardball partisan politics with her job.

    Partisan politics is increasingly becoming a factor in judicial appointments on all sides. The public isn’t happy with this development, the same with the politics of drawing such partisan district lines so as to basically eliminate most competition on that federal level, the same for the state legislative level.

    The GOP leaders in the General Assembly think they have the Governor in a position where he can’t move. The proposal here is to suggest he can fight back.

    Yes, it’s a conceptual analysis. But that is first necessary before deciding whether it can be implemented in a practical and timely fashion at this point.

    The Governor made a solid choice for the Virginia Supreme Court and did it in the time-honored manner. That’s what he should have done.

    The GOP is using its constitutional power to challenge the Governor. I get it. But as the proposal here indicates, there is a way to fight back, at least conceptually.


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