Last edited: February 14, 2005

In Virginia, Fears of a Judicial Litmus Test

Delay in Reappointment Highlights Tensions Over House Review Process

Washington Post, January 16, 2003

By Steven Ginsberg and Michael D. Shear, Washington Post Staff Writers

RICHMOND—Republican delegates have delayed the confirmation of a state Court of Appeals judge so they can question her further about some of her judicial opinions, including one involving a lesbian mother, as the party pushes for closer scrutiny of judges’ decisions.

The House Courts of Justice Committee, which reviews judges up for confirmation by the legislature, has asked Judge Rosemarie Annunziata to return for a second round of questioning Monday. The former Fairfax County Circuit Court judge originally appeared before legislators in November, when several questioned her about a case in which she ruled that a double standard was applied to a mother who had a lesbian relationship.

Annunziata’s confirmation process exemplifies a revised review process and accompanying tension that has been building for three years, since Republicans took over a process that for decades had been the exclusive province of Democrats. When the Democratic Party controlled the legislature, judges were often selected behind closed doors, with no GOP involvement.

When the Republicans gained control of the assembly three years ago, they opened the process and began quizzing judges on their records. Last year, then-House speaker S. Vance Wilkins Jr. (R-Amherst) grilled an Alexandria judge for more than an hour about a decision allowing the city to prohibit guns from public buildings.

House Republicans say their jobs require them to do more than rubber-stamp a judge’s reappointment. "I just think it’s important to look at how a judge is writing, where they are coming from, how they address their opinions," said House Speaker William J. Howell (Stafford).

Democrats in the General Assembly, legal observers and some Republicans say they are alarmed by the new approach to evaluating judges. They say that legislators have the right to probe decisions, but worry that lawmakers will vote on appointments based on their own ideologies. That, they say, could erode the autonomy of the judiciary.

"You don’t want judges deciding things simply on which way the political winds may have turned in the most recent election," said Virginia State Bar President Bernard DiMuro.

The reappointment of Newport News Circuit Judge Verbena M. Askew has also been held up over concerns about her bench demeanor and a sexual harassment charge leveled against her by another woman.

Virginia is one of the few states in the nation where lawmakers confirm judges for a set term in office. Maryland’s Circuit Court and appeals court judges are appointed by the governor but must face the voters to continue serving. D.C. Superior Court judges are appointed by the president for 15-year terms.

Virginia judges are interviewed and approved by both the House and Senate before they join the bench and when they come up for reappointment.

House delegates have shown a willingness to question judges on political issues, such as gun rights and the status of homosexuals. Senate leaders say they have tried to confine themselves to determining a judge’s ability to interpret the law. Some Senate Republicans have criticized the House approach, while resisting efforts from more conservative senators to mimic it.

"The House, in my view, doesn’t seem to know where they’re going," said Sen. Kenneth W. Stolle (R-Virginia Beach), chairman of the Senate’s Courts of Justice Committee. "We should not call people in and say, I don’t like the way you ruled and therefore I’m going to hold up your appointment."

The Senate Courts of Justice committee certified Annunziata, but the full Senate cannot vote until the House takes action.

Annunziata, who joined the appeals court in 1995, ruled in a case involving a mother who had lesbian relationships after separating from her husband. The husband had a relationship with another woman, whom he told the court he planned to marry. The Court of Appeals upheld a ruling that granted primary custody to the father, because "there is more stability in his surroundings and in his home."

Annunziata dissented, arguing that the trial judge "applied different standards when evaluating the parties’ post-separation sexual conduct."

Del. Bradley P. Marrs (R-Richmond) questioned Annunziata about her opinion at the November hearing.

"The case was about whether homosexual conduct and heterosexual conduct were on the same plane," Marrs said. Annunziata "indicated that they were. I believe they were not. There were a host of factors relied upon for that decision. She chose to emphasize that one issue."

Democrats point to the case as evidence that conservative Republicans intend to use judges’ opinions against them when the judges’ views conflict with their own.

House Minority Leader Franklin P. Hall (D-Richmond) said he is "very concerned that we are starting down a slippery slope of applying a philosophical litmus test in the selection of judges."

Del. Robert F. McDonnell (R-Virginia Beach), chairman of the Courts of Justice committee, said that Annunziata was being asked back because he failed to warn her about the cases she would be asked about.

In the Senate, Sen. Ken Cuccinelli (R-Fairfax) is trying to push the body toward a process akin to the one in the House, saying he argued for a stricter review process in a private meeting with Senate Republicans Tuesday. "There’s a very high standard for not reappointing a judge; I think the standard is too high," he said.

Senate leaders said they would oppose such efforts. "I would resist any change," said Sen. H. Russell Potts Jr. (R-Winchester).

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