WASHINGTON — The Virginia House and Senate are expected to elect Appeals Court Judge Stephen McCullough to the Supreme Court as early as Thursday. The way has been cleared after former Attorney General Ken Cuccinelli withdrew from consideration.
The votes would end a dispute between Gov. Terry McAuliffe, the Senate and House Speaker William Howell over the state’s highest court that stretches back to August. The governor can only make interim appointments, making Virginia one of only two states in the nation where the legislature, not the governor, picks judges.
“From my perspective I think that hasn’t worked terribly well because of the politicization that is exemplified by what just happened,” says Carl Tobias, Williams Chair in Law, University of Richmond School of Law.
South Carolina is the only other state where the legislature, not the governor, names judges and the South Carolina legislature relies on a panel to undertake a merit selection process.
Virginia’s process, which is enshrined in the state Constitution, has been in place since at least the 19th century.
“I just think it’s too politicized and it compromises judicial independence or at least the appearance of judicial independence,” Tobias says.
Despite the political wrangling, Tobias believes Appeals Court Judge McCullough is a good choice for the high court.
“Judge McCullough enjoys, I think, enjoys a very fine reputation and would be an asset to the court,” he says.
