Be Careful of What You Wish For

Supreme Court of Virginia

by Dick Hall-Sizemore

For those on this blog who advocate the election of judges in Virginia, The Washington Post today has an article that should give you second thoughts.  Courts cannot be isolated completely from partisanship, but it should be distressing for anyone, regardless of one’s partisan leanings, that a state supreme court, such as the one in Wisconsin described in the article, should be so politicized.  (Of course, the politicization has been there a long time.  The recent election and Democratic takeover just emphasizes it.)  Virginians should be grateful to have a judicial system that is shielded to a great extent from overt partisanship.


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73 responses to “Be Careful of What You Wish For”

  1. Eric the half a troll Avatar
    Eric the half a troll

    To a certain degree, I think state-level judges should be representing their constituents when deciding how their laws should be interpreted. It seems to me that federal judges have the role of applying the federal constitution (and its principles which may conflict with state legislation and constitutions) and so should be more protected from political influence… and, yes, there is too much political influence even there.

    1. Stephen Haner Avatar
      Stephen Haner

      “Constituents?” No, judges are there to apply the law and split the hairs if the laws seem to conflict, and if there is a dispute over facts a jury of “constituents” can and should take on that problem. We do give quite a bit of power to juries in Virginia. Virginia’s system is not perfect but direct election of judges is far worse.

    2. Stephen Haner Avatar
      Stephen Haner

      “Constituents?” No, judges are there to apply the law and split the hairs if the laws seem to conflict, and if there is a dispute over facts a jury of “constituents” can and should take on that problem. We do give quite a bit of power to juries in Virginia. Virginia’s system is not perfect but direct election of judges is far worse.

      1. Nancy Naive Avatar
        Nancy Naive

        Texas elects judges. ‘Nuff said.

    3. Judges are not supposed to have “constituents”.

    4. Stanwood Avatar

      I don’t see the difference. State judges interpret state laws and the state constitution. Federal judges the same at the Federal level. There’s no simple solution for picking fair judges. A lot depends on cultural norms rather than the rules. But I would agree with OP, what we have today in Virginia is a lot better than other more polarized states.

      1. LarrytheG Avatar
        LarrytheG

        One thing that worked well for Virginia was when it became apparent the Dems and GOP were going to be unable to redistrict and it went to judges and the judges seemed to have done it right and well…and flushed some folks who probably were incumbents in name only.

  2. Ronnie Chappell Avatar
    Ronnie Chappell

    Not obvious to me that the direct election of judges is any worse than the direct election of sheriffs, something Alexis de Tocqueville saw, if memory serves, as a way of safeguarding liberty by ensuring the independence of law enforcement from the executive branch. Many western states elected judges to ensure their independence from western governors and machine politics. In Alaska, if I recall correctly, a list of nominees are put forward by the Bar Association, one is selected by the governor and then confirmed by the legislature. Then, at regular intervals their names are placed on the ballot so that voters can decide on their retention. Most are retained. But sometimes one is voted out.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I would do away with the election of sheriffs or, at least, give all counties the option of establishing police departments. Several have that option now, but the sheriffs lobbied hard several years ago to tighten the law allowing that option.

      As a consequence, in towns, cities, and several counties (Henrico, Chesterfield, Farifax,
      Arlington, Prince William, and Albemarle, at least, but there may be others that I can’t remember) get along just fine with law enforcement under the executive branch.

      But that is a different matter from having judges subject to partisan elections.

      1. The counties with police departments still have an elected sheriff.

        1. LarrytheG Avatar
          LarrytheG

          and commissioners of Revenue and Clerk of the Court and Treasurer and my bet is almost no one knows what they do and whether they’re doing good or not or how a challenger would compare.

          1. Commissioners of THE Revenue – as I have been corrected on more than one occasion.

            And I am not arrogant enough to speculate as to what “almost no one” knows.

          2. LarrytheG Avatar
            LarrytheG

            perhaps….

          3. No, truthfully, the correct title really is Commissioner of The Revenue. I’ve looked it up.

            Plus, it was a Commissioner of The Revenue who corrected me on more than one occasion.

            And there is a Commissioners of The Revenue Association of Virginia.

          4. LarrytheG Avatar
            LarrytheG

            I plead ignorance. I have a lot of it. I’m not alone in it but I admit it. And I can learn…

            we are ALL ignorant as hell but perhaps on different subjects…

            doesn’t get less so with age… age helps you understand the real scope and scale of it.

      2. In Arlington, the Sherriff’s department runs the jail, court security, airport security while the Police department investigates most crimes. No idea why these functions are split in two or why the Sherriff is elected while the Police Commish is appointed. Probably just random history followed by turf wars?

  3. LarrytheG Avatar
    LarrytheG

    So I have to ask. Is appointment by the General Assembly better than election? Seems like some of the most partisan GA fights I’ve seen involved selecting judges…

    Am I wrong?

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      I don’t remember many strong partisan fights in the GA over the election of judges. The conflicts are usually institutional–House vs. Senate. Sometimes, that is reflective of partisan divides. Usually, they work it out.

      The most recent partisan fight was the rejection by the Republican majority of a Northam interim appointment to the Va. Supreme Court. That was both partisan and institutional–the Republicans in the General Assembly were seemingly miffed that the legislature was not informally consulted prior to the appointment.

      Of course, there is the ongong impasse over electing two SCC commissioners (who are considered judges), but, again, that is mostly institutional.

      1. LarrytheG Avatar
        LarrytheG

        It’s a big messy issue with some serious implications with respect to people trusting the criminal justice system.. of which we are now seeing attacked by certain politicians who are bringing along their supporters. I’m not sure how govt and Democracy stays together if people reject the criminal justice system… it’s what sets us apart from the worst of the worst countries in the world.

  4. walter smith Avatar
    walter smith

    Not quite end of world alert – I agree with DHS.
    But our way can be screwed up too…the Va Senate is not exactly the voice of moderation and reason currently…

  5. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    For a glimpse of the quality of people elected by the General Assembly to the Supreme Court of Virginia, see here: https://cnu.edu/news/2022/12/05-news-cleo-powell-scholarship/

    Justice William Mims, the one making the remarks, before being elected to the Supreme Court, was a Republican legislator from Loudoun County, Deputy Attorney General, and Attorney General. He is one of the most gracious and articulate members to have served on the court. Unfortunately for Virginia, he has reached the mandatory retirement age and stepped down from the court earlier this year.

    1. James Wyatt Whitehead Avatar
      James Wyatt Whitehead

      We don’t mint Virginians like this anymore Mr. Dick. It’s a shame. Every word you said about Mims is true. I had his daughter in class many years ago. He coached my Model General Assembly team on all of the GA rules and how to use them to get a bill passed. It was really cool to gain that insider knowledge. Anyways, at the Mock session in Richmond, in the actual chambers of the capitol, Loudoun County seceded, again.

    2. DJRippert Avatar
      DJRippert

      Interesting that judges have a mandatory retirement date in Virginia but US Supreme Court justices and Va legislators have no such restriction.

      Once again, overpowering the General Assembly relative to normal checks and balances.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        The voters can retire legislators every two or four years.

        1. DJRippert Avatar
          DJRippert

          Governors too – except Virginia law automatically retires them (at least temporarily) after 4 years.

  6. DJRippert Avatar
    DJRippert

    The bigger question is whether practicing attorneys in the General Assembly should recuse themselves from voting for or against the judges who will try their cases.

    1. LarrytheG Avatar
      LarrytheG

      or have Trump select judges? 😉

  7. DJRippert Avatar
    DJRippert

    The entirety of Virginia politics needs to be examined, not just one aspect. The inability of a governor to run for a second consecutive term, the lack of term limits for legislators, unlimited campaign contributions, off year elections and yes … the legislature voting for judges all make for an overly powerful legislature.

    1. LarrytheG Avatar
      LarrytheG

      And as I have often advocated … the ability of Virginia citizens to do what California and other states allow – citizen-initiated referendum.

      Virginia and other original states really did not want direct involvement of citizens in governance. The idea was to “hear” from them and get feedback and then do what they considered the best for them.

      Having said that, I remain opposed to “strongman” type leadership and I support governance by elected legislators…with the govt being led by an elected leader who has to follow the laws and not decide for himself what the laws ought to be.

      1. The idea was to “hear” from them and get feedback and then do what they considered the best for them.

        Isn’t that pretty much the definition of a Republic – Representative democracy?

        1. LarrytheG Avatar
          LarrytheG

          different ways… citizen inititated referenda?

          1. Nope. The representative democracy exists to keep me from having my rights infringed by a tyranny of the majority, especially a tiny majority.

            I might consider supporting citizen initiated referenda if they required a 2/3 or 3/4 majority to pass.

          2. LarrytheG Avatar
            LarrytheG

            high bar, yes… but ability to rise up and rattle cages… if the legislature/gov is not paying attention.

            referenda needed when elected are not representing voters but instead their own beliefs.

            Abortion is a good example. Started out overturning ROE because it was said to be a “State” issue then states tried to ban despite what voters felt… now some are advocating a Federal ban
            right after SCOTUS said it was a State’s issue. A clear majority is not a “tyranny” in my view. Or to put another way, when is the majority sentiment of voters NOT a “tyranny”? Is it a tyranny by definition anytime a majority of voters is involved?

            tiny majority unelected = SCOTUS… no?

            or for that matter a 4-3 vote at BOS level.

            In the end, its a vote.

          3. If 50.001% of my fellow Virginians can enact a law authorizing the confiscation of my guns, then I am a victim of the tyranny of the majority, but have hope of overturning such a stupid law.

            If it takes 3/4 of my fellow Virginians to enact a law authorizing confiscation of my guns, and they enact one anyway, then I am still a victim of the tyranny of the majority, but at least I know I need to find a new state to live in.

          4. LarrytheG Avatar
            LarrytheG

            If the same percent elected someone who reflected the voters,,, say in a 4-3 or 5-4 vote.. is that also
            tyranny?

            In the end, the elected must more or less reflect the voters who elect them or they
            will be voted out…. even by very close margins.

            That’s the way representative government is intended to work – to “represent” voters not your
            own beliefs.

            When it comes to guns – I have never really understood who decide who can have them or not as it’s not in the 2a…. and sometimes does not even appear to be codified in law but rather regulation by folks who are not elected… “arms” is a huge panoply of weaponry… how it ramps down to what is is now… is a mystery to me. Why not a full auto machine gun for anyone who wants? Who says you cannot have a gun if you are a “felon” or mentally unfit? I just don’t see or understand who makes such decisions… and why they can’t change such decisions to be more restrictive , etc… but this goes back to representative govt. It’s not representing you alone. Not me either. There are laws I don’t agree with but I abide by them until we elect new folks and make changes… I support this process.

          5. Why not a full auto machine gun for anyone who wants?

            That one is easy. Why not? The National Firearms Act of 1934.

            Who says you cannot have a gun if you are a “felon”…

            The Gun Control Act of 1968 proscribes felons from owning firearms. It defines “prohibited persons” regarding gun ownership.

            It’s really not that big a mystery if you’re willing to do some research.

            And by the way, the guns thing was just an example. Abortion laws or a law making [fill-in-the-blank] a felony would have worked as well.

            Corrected @ 15:29

          6. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            One of the great political philosophers would disagree with your definition of how representative government “is intended to work”.

            “Your representative owes you, not his industry only, but his judgement; and he betrays you instead of serving you if he sacrifices it to your opinion.”

            Edmund Burke

          7. LarrytheG Avatar
            LarrytheG

            Yes.. but then what are elections really for if the elected are not really representative of voters?

            What is the purpose of referenda at all if there are “representatives”?

            In states that allow citizen-initiated referenda and true recall petitions, on what basis
            do those exist if the elected only has to “represent”with his judgement?

            I think elections do hold the elected accountable for how well they represent the voters.
            And I have no problem with citizen-initiated referenda to hold legislators more accountable although as I said earlier – high bars for both getting on ballot and voted.

            Finally, look at what happened in Ohio when legislators wanted to make referenda harder
            by requiring higher percentages and the voters shot it down decisively. The legislators
            were rejected for their representation…

            https://uploads.disquscdn.com/images/a2a31c5006a210eaca27dfa17aa6df6e20f65f14a1071232724c8989c5683833.jpg

            https://uploads.disquscdn.com/images/01117522f21de8ab84ad8b622d9b7c23db3059328daa796629307ec0082b2a11.jpg

          8. Why not a full auto machine gun for anyone who wants?

            That one is easy. Why not a full auto machine gun for anyone who wants? The National Firearms Act of 1934.

            Who says you cannot have a gun if you are a “felon”…

            The Gun Control Act of 1968 proscribes felons from owning firearms. It defines several classes of “prohibited persons” regarding gun ownership.

            It’s really not that big a mystery if you’re willing to do some research.

            And by the way, the guns thing was just an example. Abortion laws or a law making [fill-in-the-blank] a felony would have worked as well.

            Corrected @ 15:29

          9. LarrytheG Avatar
            LarrytheG

            so those laws can be changed… and more restrictions added for who can own and/or what kind? Did those laws outlaw things like grenades, stinger missiles, etc?

            I admit to ignorance on the how and why. I see “arms” in the 2a and I don’t know where it is defined what are “arms” and which are allowed and for who (and not) and which are denied from ownership.

            The 2A says “shall not be infringed” – does not say , can be… says not… so who interprets “shall not be infringed” to be things that can be infringed?

          10. so who interprets “shall not be infringed”

            Asked and answered.

            1) congress when it considers and passes a law.

            2) Ultimately, the Supreme Court.

          11. so who interprets “shall not be infringed”

            Asked and answered.

            1) congress when it considers and passes a law.

            2) Ultimately, the Supreme Court.

          12. I see “arms” in the 2a and I don’t know where it is defined what are “arms” and which are allowed and for who

            Basically, anything (or any one) not specifically outlawed/banned is allowed. That part of “shall not be infringed” is easy to understand.

          13. LarrytheG Avatar
            LarrytheG

            doesn’t that seem backwards in terms of the 2A and downstream rules?

            Is it true that whatever the 2a says …. can be subsequently outlawed/banned such that the meaning of “shall not be infringed” is moot? Can anything/everything be outlawed/banned? If not, then what decides what can or cannot? How does SCOTUS know / decide what laws and restrictions both Fed and State are “constitutional” and what not on what basis?

          14. You keep asking the same questions over and over.

            And you brushed aside my comparison to the “shall make no law” in the 1st amendment, saying the 1st is “pretty absolute” with no evidence to back your claim. As far as I am concerned, “Shall not be infringed” is no more or less moot then “Congress shall make no law”.

            And I have no idea what the justices on SCOTUS are thinking until/unless they give an opinion on something.

          15. LarrytheG Avatar
            LarrytheG

            Didn’t mean to “brush it aside” but I know of very few restrictions to the 1A… and I know a bunch of restrictions to the 2A so for whatever reason – they end up different in the number of restrictions.

            But for the 2a if it says ” shall not be infringed”, that sounds pretty absolute but someone we have decided that even with such wording, we DO ALLOW restrictions – but what I do not know is what the process IS that allows restrictions that pass Constitutional SCOTUS musters. Some seem to and others not but I don’t really understand the criteria for restrictions that are constitutional and ones that are not. Who decides what those criteria are? What is the process? Is it purely what a given set of SCOTUS judges decide on an Ad Hoc basis? Can one set of POTUS say yes and another no? Can full-auto machine guns be constitutionally restricted but a later court with different members decide otherwise? When some folks want more restrictions – the stock answer seems to be that they are not allowed because they violate the 2a… can that really be ?

          16. …but what I do not know is what the process IS that allows restrictions that pass Constitutional SCOTUS musters.

            The process is called politics.

          17. LarrytheG Avatar
            LarrytheG

            indeed… so none of this is etched in stone with regard to what is restricted or not…. right?

          18. Ideally, our government’s respect for our rights is etched in stone.

            In reality, it is not.

            This is why I remain vigilant and why I rarely, if ever, support the expansion of government power.

          19. LarrytheG Avatar
            LarrytheG

            I agree it’s a mindset but not everyone and not mine. I don’t think govt is perfect by a long shot, but when we have issues, we expect govt to respond whether it’s a hurricane or a pandemic of what to do about the internet, addictive drugs, airline safety, etc, etc… We live in a 1st world country with 1st world governance, not a 3rd world where govt is “minimal”.

          20. What do you want our government to do about the internet?

          21. LarrytheG Avatar
            LarrytheG

            Not me. Lots of others.. like stopping 3rd parties from supplying social media content that social media companies “push” and then mess up kids minds and stuff.. right?

          22. Um, I guess…

            I really have no idea what you are referring to.

          23. LarrytheG Avatar
            LarrytheG

            might check around a little… it’s queued up.

          24. from the ATF web site:

            The Gun Control Act (GCA), codified at 18 U.S.C. § 922(g), makes it unlawful for certain categories of persons to ship, transport, receive, or possess firearms or ammunition, to include any person:

            convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

            who is a fugitive from justice;

            who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, codified at 21 U.S.C. § 802);

            who has been adjudicated as a mental defective or has been committed to any mental institution;

            who is an illegal alien;

            who has been discharged from the Armed Forces under dishonorable conditions;

            who has renounced his or her United States citizenship;

            who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

            who has been convicted of a misdemeanor crime of domestic violence.

            The GCA at 18 U.S.C. § 922(n) also makes it unlawful for any person under indictment for a crime punishable by imprisonment for a term exceeding one year to ship, transport, or receive firearms or ammunition.

            Further, the GCA at 18 U.S.C. § 922(d) makes it unlawful to sell or otherwise dispose of firearms or ammunition to any person who is prohibited from shipping, transporting, receiving, or possessing firearms or ammunition.

          25. LarrytheG Avatar
            LarrytheG

            right…. and if somone says that the 2A says “shall not be infringed”.. then does SCOTUS say infringements are unconstitutional?

            We make up these rules when it appears the text in the 2a does not allow it.

            no?

          26. If the 1st Amendment says “shall make no law” does that mean you can yell “fire” in a crowded movie theater, or wantonly threaten other people’s lives?

            As I have noted several times before and which you perpetually ignore, at least where the 2nd amendment is concerned, NO right is absolute.

            As with the other laws of our land, congress has legislative power to pass gun control laws.

            And yes, SCOTUS does ultimately decide whether or not laws which infringe on or abrogate our individual rights are constitutional.

            But we both learned all that in the 4th grade, so I cannot figure out what the heck you are driving at.

          27. LarrytheG Avatar
            LarrytheG

            Well for the 1st, it’s pretty absolute… very few exceptions..not sure if decided by courts or laws or both.

            On 2a .. if restrictions are allowed… then why can’t more,tougher, tighter restrictions be allowed as opposed to saying none are… because of the 2a?

          28. On 2a .. if restrictions are allowed… then why can’t more ,tougher, tighter restrictions be allowed…

            For the same reason they cannot be “allowed” regarding the 1st amendment.

            The 2nd amendment should also be “pretty absolute, with very few exceptions.

          29. LarrytheG Avatar
            LarrytheG

            but not… really.. lots of restrictions… both on the types of arms and who can have them or not. Long and detailed laws…. both Federal and State…. are all of them at risk if challenged at SCOTUS?

          30. Now you’ve found the point where I personally draw the line.

            I never said I think all current gun laws are constitutional. I said some restrictions are constitutional because no right is absolute.

            The crap that states like New York and cities like Chicago are trying to pull is clearly unconstitutional to anyone with an ounce of objectivity in their brain. And there are parts of the 1968 federal Gun Control Act which I would vote to overturn if I was on SCOTUS.

            However, I am not on SCOTUS, and it is they who have the final say.

            As you stated earlier, my opinions are not what our representatives use to pass laws, nor our judges to pass judgement on laws.

            And yes, any law is at risk if it is being heard by SCOTUS.

            But again, what is your point? We learned all this in our 4th grade civics classes.

          31. LarrytheG Avatar
            LarrytheG

            Actually, what restrictions are “crap” versus which ones are not and Constitutional are not at all
            intuitive to many including me. I don’t see why if we can deny someone from having a full auto machine gun, we can’t also deny them the close equivalent of a semi-automatic with a 100-round magazine…… and I’d bet if the SCOTUS ruled that people ARE allowed to have full auto weapons (or stinger missiles or 40 mm grenades), there would be some major push-back but then we get back to what is “restricted” and what is not and why and who decides.

            We say that we cannot require someone to pass a mental test before getting an AR-15 but if he goes out and kills a bunch of folks, we say he’s determined to be clearly mentally ill… so how do you fix this ? It appears that many opposed the mental test front end… that such folks are entitled to the weaponry even though we pretty much know they are mentally unfit – AFTER they’ve slaughtered people. Surely the pro 2A folks have some solution to this.

  8. energyNOW_Fan Avatar
    energyNOW_Fan

    Virginia judges must be doing a good job because I am not aware of any meddling. US judges (4th Circuit in Richmond) was blocking MV Pipeline for reasons of political virtue signaling. Believe they finally got over-ruled. Of course the Va. state attorney general office is highly politics motivated, both Dems and Repubs.

  9. f/k/a_tmtfairfax Avatar
    f/k/a_tmtfairfax

    North Carolina has direct election of judges. I think the Virginia system is superior. However, the worst of all possible worlds is a facially non-partisan system that really is partisan in practice. Given a choice between an openly partisan system and covertly hidden system of picking judges, I’ll select the open system.

    My apologies to Voltaire.

    P.S. North Carolina has had a system where county board members are elected by district (at least in some counties) but everyone in the county gets to vote for all the district candidates. There, the Democrats in the legislature fought to keep the status quo, but the GOP supermajority in both houses changed the law so that only residents of the district can vote for their district representative.

    1. So under the old system all board members were elected as if they were “at large” but they were assured of one member from each district?

      That’s an interesting idea.

    2. So under the old system all board members were elected as if they were “at large” but they were assured of one member from each district?

      That’s an interesting idea.

    3. So under the old system all board members were elected as if they were “at large” but they were assured of one member from each district?

      That’s an interesting idea.

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Virginia Beach had a similar system until recently.

        1. I thought they had specific district representatives as well as a couple/few at-large representatives, with the district reps being elected by the voters within their district, and the “at large” elected by the entire voting body.

      2. f/k/a_tmtfairfax Avatar
        f/k/a_tmtfairfax

        Terrible idea if your community has more members of a minority race or political party. Funny how the DoJ Civil Rights Division never seems to investigate at-large (Arlington County) or de-facto at-large jurisdictions controlled by members of the Democratic Party.

        Needless to say, this one isn’t on the MSM radar either.

        1. how_it_works Avatar
          how_it_works

          Interestingly, Arlington County has never applied for “bailout” from the preclearance requirements of the Voting Rights Act.

          Prince William County and City of Manassas Park are the two most recent Northern Virginia jurisdictions to be granted “bailout”:

          https://www.justice.gov/crt/section-4-voting-rights-act#bailout_list

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