Editorial: Proposal should prompt broad discussion about Virginia judiciary

The Virginian-Pilot & Daily Press Editorial Board, The Virginian-Pilot

While it’s taken on a slightly partisan hue, there’s an opportunity to address proposals to restructure the Virginia Court of Appeals and publicly discuss it in ways that illuminate rather fulminate.

Essentially, Gov. Ralph Northam wants to spend $5.1 million to expand the Virginia Court of Appeals from 11 to 15 judges. This proposal has been objectively examined, has the support of the Virginia Bar Association, and appears thoroughly consistent with the broader purpose of judicial efficiency.

“Judicial efficiency” means that cases get adjudicated in a timely manner and in adherence with established process. The orderly administration of justice is vital at all times, but within Virginia it became particularly compelling about 50 years ago.

Virginia realized that population increases and the resulting volume of litigation — civil and criminal — obliged some rethinking of judicial structure and how resources get applied.

So, for instance, in 1972, the Virginia Judicial Council drew up a system of geographic districts to trim some Virginia judicial circuits back and establish new circuits where the population required it, such as in Richmond and Alexandria.

All this was part of a larger effort to reorganize the state’s court system.

At the same time, roughly, a proposal emerged to do more than “rearrange.” It was time to create something new, namely an “intermediate” court between Virginia’s workhorse “courts of record” — the circuit courts — and the Virginia Supreme Court.

Not everyone agreed (when does that happen ever on anything?), but certain facts spoke for themselves, namely that Virginia was the most populous state without an intermediate appellate court and only a fraction of circuit court decisions were being reviewed.

Ergo, it was obviously time to do something and quickly the debate took up the question of what size the new court should be, its jurisdiction and the right of appeal. Most lawyers then — most lawyers now — wish to see an automatic right of appeal.

As generally happens, a compromise followed and the Virginia Court of Appeals began its work in 1985 with 10 judges, fewer automatic rights of appeal, and limited jurisdiction.

Adjustments have been made since — there are now 11 judges — and that is normal. The Virginia Constitution allows for the General Assembly to adjust the size of the Court of Appeals, as well as the size of the Virginia Supreme Court — and it is not a partisan conspiracy to do so, as some Virginia Republican lawmakers and candidates have asserted.

Not to oversimplify, but the nut of the GOP position is this: It’s OK for Republicans, when holding a legislative majority, to “pack” the courts with Republicans; it is not OK for Democrats to do the same.

Former Speaker of the House Kirk Cox goes further and argues that “new judges should be appointed by a nonpartisan merit-based selection committee.”

Virginia could do that. That’s certainly worth discussing. Cox’s enthusiasm for this approach to judicial selection appears not to have been fully realized until he became an ex-speaker, but no matter. Let’s kick that one around.

Let’s kick all the other questions around: the size of these courts, the process employed, the rights enjoyed, so on and so forth.

As a practical matter, Virginia’s judiciary — specifically, its administrative capacity and appellate arrangements — have seldom been an object of great public interest or a major driver of political discourse.

Yet, the stakes involved in getting these arrangements done right are significant. The experience of the Virginia Court of Appeals, since its creation, conclusively says so. There are fewer back-ups at the door of the Supreme Court; the system is far more accessible and user-friendly.

In short, we learned that we can make the judicial system run better. The evidence (you know, like in a trial) supports that conclusion. We can draw confidence from the past.

Because, for those who have carefully scrutinized current conditions, the time has come once more to improve Virginia’s judicial system.