The Washington PostDemocracy Dies in Darkness

McAuliffe asserts legal right to reappoint Supreme Court justice

September 15, 2015 at 7:38 p.m. EDT
Virginia Gov. Terry McAuliffe (D), center, with his Supreme Court pick Jane Marum Roush at a news conference in July. (Bob Brown/AP)

Gov. Terry McAuliffe's top lawyer laid out a legal rationale Tuesday for the governor's plan to reappoint Justice Jane Marum Roush to the Virginia Supreme Court.

In a five-page letter to Republican leaders of the state House and Senate, McAuliffe counsel Carlos L. Hopkins aimed to undermine the GOP’s contention that the governor lacks the authority to keep the former Fairfax Circuit Court judge on the state’s highest court after her original appointment expires Wednesday.

McAuliffe (D) and Republicans have fought bitterly over Roush for weeks, with questions about his reappointment powers turning on whether the General Assembly adjourned in August. The governor can make a recess appointment only when the legislature is not in session.

“I have concluded that the General Assembly is not in session,” McAuliffe said in a statement that accompanied Hopkins’s legal opinion. “I will not allow a vacancy on the state’s highest court to persist while important cases and controversies are pending.”

McAuliffe’s statement was couched in conciliatory language — notable since the Roush battle began with Republican complaints that the governor had failed to consult GOP leaders about his pick.

“Today, I reached out to Speaker Howell and Majority Leader Norment,” it began.

But House Speaker William J. Howell (R-Stafford) and Senate Majority Leader Thomas K. Norment Jr. (R-James City) were not won over.

“The Governor’s decision to exercise his interim appointment authority is a direct violation of the plain language of the Constitution of Virginia,” they said in a joint statement. “The Governor’s insistence on exercising his appointment powers in a manner exceeding his constitutional authority places the Supreme Court of Virginia in an untenable position.”

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The statements from McAuliffe and Hopkins represent the first explanation the administration has provided for why the special session convened in August should be considered over — a question that a McAuliffe spokeswoman previously dismissed as an “existential argument.”

The legal opinion came from McAuliffe's in-house lawyer rather than Attorney General Mark R. Herring (D). Herring spokesman Michael Kelly declined to say whether the governor had asked him to weigh in.

"Any work we may have done would be attorney-client privileged and we couldn't discuss/share it," Kelly said.

McAuliffe spokesman Brian Coy said the governor did not seek a formal opinion from Herring's office but did consult it.

McAuliffe gave Roush an interim spot on the state's highest court in July, when the legislature was not in session. Such recess appointments expire 30 days after the legislature reconvenes, unless legislators elect the judge to the slot.

After Republicans refused to give Roush a full 12-year appointment during a special session in August, McAuliffe said he would give her a second recess stint once the first expired. The Senate abruptly adjourned Aug. 17 in a bid to preserve McAuliffe's power to put her back on the bench, but the House did not.

Under the Virginia Constitution, neither chamber shall adjourn “without the consent of the other.” Hopkins acknowledged in his letter that the Senate did not have the House’s consent to adjourn. But he noted that the language about consent is in a section of the Constitution that refers to regular legislative sessions, not special sessions.

Hopkins also said the special session should be considered over because Virginia has a part-time legislature.

“It simply cannot be the case that the General Assembly may remain in special session indefinitely, especially when the specific business for the special session has been completed,” Hopkins wrote.

The General Assembly has stretched out special sessions before to prevent the governor from making recess appointments. The GOP used that tactic against McAuliffe by not gaveling a 2014 special session to a close until the opening day of the regular session last January.