General Assembly divide means Court of Appeals, SCC judge picks will fall to Northam

Gov. Ralph Northam will have the chance to make interim appointments for two judicial seats after lawmakers failed to agree on nominees for vacant positions on the Virginia Court of Appeals and the State Corporation Commission.

Democrats in the House and Senate said they simply couldn’t reach agreement between the two chambers on who to elect to a vacancy on the Court of Appeals and, as a result, no vote was taken. 

Neither side was willing Thursday to publicly discuss the nature of the dispute or their preferred candidates. Lawmakers had interviewed six candidates earlier this month.

“It does happen and it has happened in the past,” said Carl Tobias, a law professor at the University of Richmond who tracks state judicial appointments. He noted that two appointments to the Supreme Court of Virginia fell to former Gov. Tim Kaine, and both candidates were subsequently appointed to full terms when the assembly reconvened. More contentious was a Supreme Court vacancy filled by former Gov. Terry McAuliffe, whose appointee was later pulled off the bench by Republican lawmakers. “It’s very delicate,” he said.

Democrats in the House and Senate ran into a different problem when it came to their SCC nominee. They agreed on a candidate: Jehmal T. Hudson of Arlington, a director of government affairs for the Federal Energy Regulatory Commission who would have been the first African American to serve on the powerful body that oversees Virginia’s utility regulation, insurance, banking and securities.

But while House Republicans went along with the nomination, voting unanimously with their colleagues across the aisle to elect Hudson, Senate Republicans led by Minority Leader Tommy Norment of James City balked.

In a move that reflected Senate Republicans’ general disapproval of Democrats’ leadership during the session, which had to be extended beyond its 60-day deadline to allow lawmakers to complete their work, the caucus blocked a motion to waive the chamber’s rules that was needed for the body to continue with the nominating process at such a late date. The procedural vote would have required support from 27 members of the chamber, a majority the Democrats — who held a narrow 21-19 edge in the Senate — did not have. 

“Frankly the fact that we’re doing this at the last minute on the 65th day tells you something about the flaws in [the Democrats’] process and their thinking,” said Jeff Ryer, press secretary for the Virginia Republican Senate caucus. “I think that the minority caucus has had its fill of having to extend simply because the new majority couldn’t get its act together.”

But Ryer also said that the Senate Republicans had “definite objections” to Hudson stemming from the nominee’s lack of experience with Virginia’s commission and the banking and insurance industries. 

And, he added, they were unhappy with what they perceived to be a slight by Democrats against former Commissioner Patricia West, who was appointed by Republicans last year to complete the unexpired term of SCC Judge James Dimitri.

That hasty appointment, pushed through by Republicans in a surprise vote over unanimous objections across the aisle, produced significant resentment among Democrats.

Their anger appeared to bleed over into the 2020 session: This winter, as the expiration of West’s term approached, the Democrat-led House Labor and Commerce Committee included on one of its meeting dockets the certification of West’s qualifications to be a commissioner, a necessary precursor to election — and then never brought it up for consideration. 

“They didn’t even tell her that she would not be considered for reappointment,” said Ryer. “We do not think it’s been well handled.”

Jake Rubenstein, spokesman for House Speaker Eileen Filler-Corn, said of the blocking of Hudson’s nomination that it was “really a shame the Senate rejected such a well-qualified, well-vetted candidate.”

Without Senate support for Hudson, the nomination stalled. 

Vacant seats not filled by the General Assembly can be filled by the governor, who is allowed under the Virginia Constitution to appoint a commissioner on an interim basis for a term expiring 30 days after the start of the next legislative session. 

While some political insiders indicated they thought Northam was likely to sign off on Hudson, the governor has not made a statement about who he intends to appoint.

Until the governor acts, the SCC will continue operating with only two judges, long-standing commissioners Mark Christie and Judith Jagdmann.

The Virginia Constitution establishes the SCC as a three-person body but allows legislators to increase its size to five members. A proposal this session by freshman Del. Dan Helmer, D-Fairfax, to expand the membership was ultimately pushed off to next year for further consideration.