In Virginia, Fears of a Judicial Litmus Test
Delay in Reappointment Highlights Tensions Over House Review Process
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
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
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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