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Introduction
The other day I had someone ask me what I thought about the "vacancy crisis" on the Supreme Court. My response was "which one?" See, while you probably already know about the US Supreme Court having a bit of a vacancy crisis arising from the death of Justice Scalia and no one really knowing when or if that vacancy will be filled, in Virginia our own Supreme Court has been dealing with a vacancy crisis of its own since last summer. Neither seem likely to end soon, and both have gotten me a good number of questions. So, with this post, I'll give a basic breakdown of what the issues are in each vacancy and where I see them likely to be headed.
Background on the Virginia Supreme Court Vacancy
Last summer, Virginia Supreme Court Justice Leroy Millette announced his retirement. Now, in Virginia, judges are elected by the General Assembly without any input from the Governor. However, when the General Assembly is not in session, the Governor can appoint someone who will sit on the bench until 30 days after the next session of the General Assembly begins.
Last summer, the Republican-controlled General Assembly was not in session, so the Democratic Governor (Terry McAuliffe) decided he would make a recess appointment, as had been done 31 times previously for the Virginia Supreme Court over the past 100 years. All 31 previous times, even when the Governor and General Assembly have been of different parties, the Governor's choice has then been elected to a full term on the Court, so Governor McAuliffe took this appointment very seriously. He reached out to the bar associations and members of the General Assembly Courts of Justice Committees for recommendations. Finally, he settled on Fairfax County Circuit Court Judge Jane Marum Roush - a judge recommended to him by Dave Albo, the Republican Chair of the House Courts of Justice Committee, and unanimously supported by the major state bar associations due to fairly impeccable credentials. With Del. Albo standing next to them, Governor McAuliffe announced his pick of Judge Roush shortly thereafter, and she ascended to the Supreme Court (this was also personally exciting for me, as I have appeared in front of Justice Roush more times than any other judge in my legal career to date).
Well, the Republican leadership in the General Assembly pitched a fit. They were mad that Governor McAuliffe spoke to the Courts of Justice Committees, instead of the actual Republican leadership (Speaker of the House and Senate Majority Leader) something that some previous governors had done, but others had not. The Republican leadership openly admitted that Justice Roush was well qualified for the position, but due to this alleged "breach in protocol," they announced that, for the first time in more than 100 years, they would kick the Governor's choice off the bench and put forward their own nominee.
In August, the General Assembly reconvened for a special session, but in the Senate, where Republicans have only a 21-19 majority (and the Lieutenant Governor, who casts the tie-breaking vote, is a Democrat), all did not go according to plan. Retiring Republican Senator John Watkins called the Republican Party out on its shenanigans, and refused to support their efforts to advance their own nominee. As a result, no new justice was named. The Senate then, along the same 20-20 vote with the tie broken by the Lieutenant Governor, voted to adjourn their session, without the consent of the House of Delegates. This move was of questionable constitutionality, since the Virginia Constitution forbids one house of the General Assembly from adjourning without the consent of the other, but the syntax of the constitutional provision makes it very unclear if that requirement applies to special sessions or only regular sessions. As a result, the Senate determined on its own that its actions were constitutional, the (Democratic) Attorney General agreed, and there was not much the House of Delegates could do. As a result of this adjournment, once the 30 days had elapsed ending Justice Roush's term, Governor McAuliffe re-appointed her.
Fast forward to the current session, Republicans still hold a 21-19 majority in the Senate, and they have dug in their heels. The Speaker of the House of Delegates declared that Republicans can never support Roush now because she a) lobbied legislators to keep her job, and b) accepted the re-appointment that Republicans claim was unconstitutional. With Senator Watkins out of the Senate, most observers considered Justice Roush doomed, but then freshman Republican Senator Glen Sturtevant, the very Senator who was elected to Senator Watkins' former seat, announced that he himself would not support the Republican effort to remove Roush. Then, a Democratic Senator, Louise Lucas, announced she would support that effort, only to change her mind a few hours later after meeting with Governor McAuliffe.
So, where are we now? The thirty days on the current session has expired, Justice Roush is now off the Supreme Court bench, but the election of a new justice any time soon seems unlikely. There are about thirty days left in the General Assembly session when it will end automatically, and require a two thirds majority of each house to extend (not likely). Governor McAuliffe has already announced that if there remains a vacancy at that time, he will appoint Justice Roush yet again.
Background on the US Supreme Court Vacancy
This vacancy has much less back story required than the Virginia vacancy. On February 13th, Justice Antonin Scalia passed away in his sleep. Scalia was seen as the mouthpiece of the conservative wing of the Supreme Court. However, the Constitution authorizes the President to appoint Supreme Court Justices, who must then be approved by a majority of the US Senate (interestingly enough, the President can also appoint someone who automatically takes the bench until the next session of Congress, so in this case until 2017, if the Senate is in recess, as it is this week, but President Obama has opted to not use that power, which has not been used to put a Justice on the US Supreme Court since the 1950's).
With Barack Obama sitting as President, most expect he would nominate a liberal justice to replace the conservative Scalia. As a result, many senators in the Republican-controlled Senate have already said they will refuse to even allow a vote on a President Obama nominee, insisting that the next president should pick. This would create a vacancy that could last an unprecedented 340+ days. As of now, Obama has not yet announced a nominee, but has declared he will put one forward.
Implications of the Vacancies
While both courts have a vacancy at the moment, this means each court has an even number of justices (6 in Virginia out of the usual 7, and 8 in the US Supreme Court out of the usual 9), however, the impact is much more profound in the US Supreme Court than in Virginia. This is for a couple of reasons.
First of all, Virginia has the concept of "senior justices." These are justices who have reached a certain age and number of years of service on the court, and have retired from "active duty" on the court. There are currently four senior justices. In any given case, where there are less than seven justices available (traditionally due to a justice being sick, unavailable, or recused from a case, but the presence of a vacancy can also be a reason), a senior justice can be called on to sit on the case, and cast a vote and write opinions just as if he or she was still an active justice. As a result, it is unlikely that the Virginia Supreme Court will face any split decisions as a result of this vacancy. Moreover, from a political standpoint, the Virginia Supreme Court has had a conservative/Republican majority of either 4 or 5 for some time - Justice Millette was seen as a moderately liberal/Democratic justice, as has been Justice Roush. As a result, the vacancy is unlikely to change the balance of power on the Virginia Supreme Court. Additionally, the Virginia Supreme Court has much fewer "political" cases than the US Supreme Court, so divided cases, or at least ideologically divided cases, in the Virginia Supreme Court are actually fairly rare.
The US Supreme Court, however, is quite different. The US Supreme Court has had since the late 1980's and early 1990's a 5-4 conservative/Republican majority (although Justice Kennedy, a part of that majority, at times votes with the court's liberal wing). Justice Scalia's death not only leaves the court with 8 justices, but it leaves the court with 4 liberal justices and 4 conservative justices. While the US Court system does have the concept of "senior justices" and there are presently three of them (former Justices O'Connor, Souter and Stevens), senior justices can only sit on Circuit Court of Appeals panels, not on the Supreme Court. As a result, it is very probable that as long as the vacancy remains, we could have a slew of 4-4 decisions. In the case of a tied decision in the Supreme Court, the lower court decision stands, but is not binding precedent on the rest of the country. As a result, major hot-button constitutional issues likely cannot be decided until the vacancy is filled.
How I see things playing out
Setting aside what I'd like to happen or what I think should happen, I honestly don't foresee either of these crises resolving any time soon. The Republicans clearly have the power to block any Obama nominee, and the Republicans in the Virginia General Assembly have basically backed themselves into a corner on Justice Roush.
My prediction in Virginia is that the disagreement will not resolve this session and the session will end with a vacancy, at which time Governor McAuliffe will re-appoint Justice Roush. At some point, I believe cooler heads will prevail and Justice Roush will be elected to a full term on the court, although one possible way out for everyone would be for President Obama to nominate Justice Roush to a seat on the federal 4th Circuit, which several people have suggested. Regardless, I expect that by this time next year, this crisis will have been resolved, likely with Justice Roush serving a full term on the Virginia Supreme Court, but I do not anticipate that to happen this session.
My prediction in the US Supreme Court is that President Obama will nominate DC Circuit Court Judge Sri Srinivasan. Judge Srinivasan is probably the most qualified "democratic" jurist in the country, and in a normal year would be a largely non-controversial pick. Given that 2016 is an election year, however, and that Judge Srinivasan has the potential to tip the balance of the Supreme Court, I expect the Republicans in the Senate to still refuse to give him a vote. This will become an issue in the election. Regardless, I have trouble seeing anyone picked by Barack Obama being confirmed to this seat, and I expect that a year from now, the US Supreme Court will still have a vacancy, and the new president's pick will be going through the confirmation process.
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