Here comes the judge – maybe

By: Jeff Schapiro | Richmond Times-Dispatch
Published: December 19, 2010

The first thing we do, let’s tax all the lawyers.

Could that, with apologies to the Bard, be a part of an effort by Gov. Bob McDonnell and the General Assembly to thaw a freeze on hiring about 30 judges? Problem is it may tick off those complaining the loudest about how the freeze — it saves $10.4 million — is slowing the courts: lawyers.

In addition to pledging $1.7 million to fill yet-to-be-identified “longstanding priority” judicial vacancies, McDonnell’s proposed tweaks to the budget include grabbing $5 million from the Virginia State Bar, the government agency that licenses and disciplines lawyers.

Perhaps the money, which, under budget language dating to the Wilder years, is supposed to be used solely for the bar, will cover salaries and benefits for other open judgeships? That’s the speculation.

But because those funds are not tax dollars — they represent about half the bar’s annual budget and are generated by dues and penalties paid by lawyers — it could be argued the snatched cash becomes a user fee, if not a tax, on lawyers to finance for the courts.

Lawyers and legislators used to be chummy. But that was when the former dominated the ranks of the latter. The relationship made for a smooth, clubby, often-secretive judicial-selection process. The constitutionally required, General Assembly approval of judicial nominees was a mere formality. Booting bad judges usually was done discreetly.

With the Republican ascendancy in the 1990s, the means of picking judges changed. While it remained the prerogative of the majority party, this exercise, under Republicans, was depicted as a way to impose a partisan stamp on a judiciary from which the GOP had been locked out. That also meant dumping judges who violated party orthodoxy.

Through the economic downturn, it became an article of faith with some Republicans that the courts would tighten their belt. The hiring freeze seemed a no-brainer, easily sold to a cynical public. But the courts’ primary constituents — lawyers — aren’t buying it. Enter: Irv Blank, loquacious president of the Virginia State Bar.

In a recent e-mail to members, he asked for evidence of how the freeze is affecting “your clients — individual and corporate.” Blank said “signs of crisis are emerging” in some regions as the mandatory retirement at age 70 threatens to further deplete the judiciary.

A possible solution: allowing judges to serve until age 73 — a proposal killed last year in the House, where the GOP majority apparently views the current retirement age as a reliable way to generate jobs for its friends. That the Democratic chairman of the Senate Finance Committee — 84-year-old Chuck Colgan — likes the idea, may be the kiss of death.

McDonnell’s “priority” judgeships may include one on the Eastern Shore — a Democratic senator’s brother is interested in that slot — and a juvenile court seat in Petersburg, where thousands of cases are pending. There’s fussing over a Virginia Beach judgeship for which McDonnell’s former law partner was once mentioned. He’s now interested in the Virginia Supreme Court. Richmond wants two replacement judges.

How all this plays out is an insider’s game. Deciding which judgeships are filled and who decides who fills them could come down to a change in the landscape. Legislators are discussing, soto voce, redrawing judicial districts for the first time in three decades.

And you thought legislative redistricting was nasty?

Contact Jeff E. Schapiro at (804) 649-6814. His column appears Wednesday and Sunday. Watch his video column Thursday on TimesDispatch.com. Follow him on twitter.com/RTDSchapiro. Listen to his analysis Friday at 8:33 a.m. on WCVE (88.9 FM).

Here comes the judge – maybe

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