Virginia Democrats reshape Court of Appeals with eight new appointments

Virginia Democrats quadrupled the number of Black judges and doubled the number of women on the state’s Court of Appeals with the election of eight new judges Tuesday.

Members of the party said the selections would make the court the most diverse in the state’s history.

“I think it’s important that when individuals look at the court, that they see they too can be on one of the highest courts in the state,” said House Majority Leader Charniele Herring, D-Alexandria, who chairs the chamber’s courts committee. “And I think when we have a diversity of perspectives, it makes the decisions better.”

The unusually large block of appointments was made possible by legislation passed earlier this year that expanded the number of seats on the court from 11 to 17, part of a legal reform that will broaden the court’s jurisdiction to guarantee appellate review of all civil and criminal circuit court decisions. Virginia has been the only state in the country that doesn’t grant such a by-right appeal.

The expansion drew accusations of court packing from Republicans, who also criticized the secretive approach Democrats took last week as they met with nominees in private to make their selections.

Supporters frame the court’s expansion as an important reform that has drawn bi-partisan support from within the legal community. But Democrats also weren’t shy about the fact that it would also give them an opportunity to make a decisive mark on a court whose make up has been shaped by years of Republican control.

“It’s truly historic and I think we’re going to make a huge difference in the court and I hope we can bend the court to a more balanced court,” said Sen. John Edwards, D-Roanoke, who leads the Senate’s court committee.

To GOP accusations of court packing, Edwards responded, “Well, they picked the courts the last 20 years.”

From the start, Democrats said they would make diversity a priority in the appointment process.

The court is currently made up of mostly White men, with one Black judge and three female judges sitting on the panel. In addition to the six new seats created as part of the court’s expansion, Democrats also filled two vacancies, one of which has remained empty for two years after Democratic caucuses in the House and Senate were unable to agree on a candidate.

In addition to gender and racial diversity, Democrats said they also prioritized electing judges with varied professional experience. Most of the judges currently on the court either previously served as prosecutors or worked in the Attorney General’s office, lawmakers said.

The new class of judges includes two current and former public defenders and a longtime legal aid attorney — professional backgrounds that have never before been represented on one of the state’s high courts.

Sen. Scott Surovell, D-Fairfax, a defense lawyer who was among the group of lawmakers who led the selection process, said the tendency toward elevating prosecutors to the bench has had real world consequences for criminal defendants. As an example, he cited precedent set over the past several decades limiting judges’ discretion to dismiss criminal cases — case law Democratic lawmakers have worked to reverse with legislation since they took majorities in the House and Senate in 2020.

“I don’t think there’s any question that the court would benefit from having more members with experience in criminal defense,” Surovell said.

During public interviews lawmakers conducted Tuesday, several candidates said they expected to draw on those backgrounds when they took the bench.

“I’ve seen how cases are brought when you have all the resources in the world and I’ve seen how cases are prepared when you have very little,” said Lisa Lorish, an assistant federal public defender from Charlottesville. “And I think I would bring that experience with me.”

Doris H. Henderson Causey, who is the managing attorney at the Central Virginia Legal Aid Society, told lawmakers her work providing civil representation for low-income Virginians has helped her appreciate the plight of the disenfranchised and marginalized.

“There’s a constituency that has never been represented on that court and those are the people that I serve,” she said.

Democrats also elected:

• Dominique A. Callins, a family law lawyer from Front Royal;
• Vernida R. Chaney, the former senior assistant public defender in Fairfax and assistant capital defender;
• Frank K. Friedman, a well-known appellate lawyer who practices in Roanoke.
• Norfolk Circuit Court Judge Junius P. Fulton III, who oversaw the development of the city’s drug court, an alternative sentencing program, and presided over it for two decades — longer, he says, than any other judge in the state;
• Fairfax County Circuit Court Judge Daniel Ortiz; and
• Stuart Raphael, a former solicitor general of Virginia who works in appellate law and lives in Arlington.

Republicans opposed the selections at nearly every step of the process, accusing Democrats of being unusually secretive as they winnowed down the list of applicants in private.

Judicial selections, which are the sole purview of the General Assembly, are typically partisan exercises prone to accusations of cronyism. (Republicans made headlines in 2019 when they elected a sitting senator’s sister to the Supreme Court of Virginia.)

But members of the GOP said Democrats broke with tradition by interviewing candidates as a group in private last week and only making their selections public on Monday afternoon — less than 24 hours before lawmakers would be called to vote on them.

Virginia Democrats meet in private to choose finalists for eight Court of Appeals appointments

Sen. Mark Obenshain, R-Rockingham, walked out of the Senate committee meeting Tuesday morning as candidates were being interviewed after voicing frustration that GOP members had only been provided with background and application materials about the candidates that morning.

Republicans also voiced frustration that no alternative candidates would be considered or interviewed by Democrats, though Democrats in the Senate did offer to interview anyone put forward by the GOP. At the same time, however, they made clear those candidates had no chance of ultimately being selected because Democrats in the House were unwilling to make a similar concession.

On the Senate floor, Obenshain said he appreciated the gesture, but wondered whether it would be “a fool’s errand.”

Edwards responded that, “the characterization of a fool’s errand is the senator’s characterization, but I think the senator gets the point.”

Correction: An earlier version of this story misstated the number of women currently sitting on the Virginia Court of Appeals.