Defending the Authority of the Legislature
Having served in Congress as well as previously in the Virginia General Assembly, I believe the Commonwealth’s government generally functions more efficiently and effectively than the federal government. That’s not to say there aren’t occasional situations in Virginia that become ugly, unfortunate, and/or unfair.
One of those unfortunate situations is the current discussion between the executive branch of government and the legislative branch of government as to whom should fill a vacancy on the Virginia Supreme Court.
In Washington for the last 50 years or more, the legislative branch has let itself be pushed around by the executive branch. The United States Congress has chosen not to make hard choices when it would look ugly, unfortunate, or perhaps unfair to someone. This has resulted in an executive branch that thinks it can issue executive orders with little or arguably no real authority to do so. It has led to treaties being dealt with as if their approval was like a House Resolution, instead of following the Constitution. It has led to agencies of the executive branch of government thinking that they have the right to ignore congressional intent.
Process and protocol are never things that the media loves, but in reality they are vital in ensuring the operations of an effective and efficient system.
In Virginia, the legislature under both Democrats and Republicans has been more diligent in guarding the authority of the legislative branch.
The recess appointment made several weeks ago by Governor Terry McAuliffe in Virginia’s Supreme Court was unfortunate.
Those who understand the process know this is a temporary appointment only. This appointment lasts until the legislature acts to appoint either the governor’s choice or someone else to a full 12-year term.
Because the legislature has the authority to make the choice, governors making interim appointments have historically discussed their preferences and negotiated with General Assembly leaders in advance.
In the case currently embroiling Richmond, Governor McAuliffe did not involve the leadership of the House or Senate in the process.
As former Governor L. Douglas Wilder said in reference to Governor McAuliffe, “The issue is whether you observed the protocol. And you didn’t. That’s all there is to it.”
It appears the governor only spoke to the Republican Chairman of the House Courts of Justice Committee. He did not speak with elected leadership in each house following appropriate practice and precedent.
The legislative leadership has now indicated their preference for another candidate. Many would have you believe this is about the qualifications of the various candidates. But I believe it is about whether or not the Virginia legislature will accept the diminished role that the United States Congress regrettably now finds itself in.
In order to preserve the balance of power between the branches of government, leaders like Speaker of the House Bill Howell (R-Stafford) and Senate Majority Leader Tommy Norment (R-James City) have to make tough decisions.
I have not spoken with either of these gentlemen about this situation, but as a former Majority Leader in the Virginia House of Delegates, I do not see any other choice given to these leaders by Governor McAuliffe.
They had to either accept that the long and storied history of the Virginia legislature would now be inferior to an executive branch, as is sadly the case in Washington, OR reject the governor’s choice.
The leaders were not given a pretty choice by the governor. There is no question this situation is unfortunate, ugly, and unfair. But making it clear to all future governors that the legislature will not be ignored is better than agreeing to the imbalance of power currently in Washington.
Whether or not a power grab was intended by Governor McAuliffe, failure by the legislature to act forcefully would cede power to the executive branch.
If Governor McAuliffe’s action is allowed to stand, every future governor will be in a position to pick many if not all judicial appointments for the Supreme Court, the Court of Appeals, and the Circuit Courts, notwithstanding a Constitution which says that’s not the way it’s supposed to be.
While I recognize it might take a decade or two for this to become the “new normal,” I believe this is a potential turning point in Virginia’s history. If the legislature defends its constitutional authority, their doing so will soon be forgotten. But if they fail to defend their authority, as some would have them do, historians will look back at this as the beginning of the demise of their position as a co-equal branch of government. Should Virginia go down the same path that Congress has gone down before them, then I fear the end result will be a weaker legislative branch and a government less responsive overall to the people.
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