Virginia’s second-highest court appears to be a remarkably diverse institution.
Of the 17 judges who sit on the Virginia Court of Appeals, nearly half — eight — are women, including the chief judge.
Five of the judges are Black.
One is Latino — and an immigrant from El Salvador.
If you were to take a photo of all the judges, it would be a photo that looks very much like Virginia’s modern demographics.
Except for one thing.
There is only one member from west of Charlottesville, and none from west of Roanoke. (Frank Friedman of Roanoke is that sole member.)
That latter distinction does not appear to be likely to change anytime soon.
This year’s General Assembly voted to expand the court’s membership to 21 members; Republicans churlishly note that the court has only expanded when Democrats have controlled the legislature, so Democrats get four new seats to fill with this expansion.
The Virginia Bar Association recently recommended five people for the four positions. Two are from Richmond, one is from Fairfax County, one from Norfolk, one from Roanoke, but none from Southwest Virginia.
Earlier, the Virginia State Bar — the bar and the bar association are two separate entities — evaluated 45 applicants and deemed 31 of them either “highly qualified” or “qualified.”
Of those 31, only two were from west of Roanoke: Sage Johnson, a circuit court judge who sits in Bristol, Washington County and Smyth County, and H. Fuller Cridlin, the commonwealth’s attorney in Lee County.
The General Assembly is expected to make its picks sometime in late November, according to Senate Majority Leader Scott Surovell, D-Fairfax County. In practice, that means the Democratic majority in the General Assembly will make its picks. The election of judges is a closely guarded political process in Virginia, which makes these things difficult to impossible to forecast. However, some things aren’t secret: There are only two Democratic legislators west of Charlottesville and none west of Montgomery County. Democrats owe absolutely no political debts to Southwest Virginia — that’s a part of the state that no longer elects Democrats to state or federal office, a part of the state where Democratic candidates are lucky to get 30% of the vote. Johnson and Cridlin could be the most brilliant legal minds in the land, and it would still be hard to imagine the politics that would lead a party anchored in the urban crescent to put one or both of them on the bench.
Even the other judicial candidates from west of the Blue Ridge — Finney from Roanoke, Harold Oliver III of Harrisonburg and Circuit Court Judge Christopher Russell from Rockbridge County — might find themselves on the outside politically, simply by reason of geography. (Of note: Russell is the judge who has been presiding over the cases that have spun out of the Natural Bridge Zoo animal abuse investigation. He’s the judge who ordered Gretchen Mogensen of the zoo-owning family to either reveal the whereabouts of two missing baby giraffes or go to jail. She chose jail. The giraffes were later recovered, although the attorney general’s office isn’t saying where or how due to an ongoing investigation.)
I offer no insight into the qualifications of any of these judicial candidates. Instead, my focus is simply on geography: The Virginia Court of Appeals might well be the least geographically diverse of Virginia’s most important state institutions.
The General Assembly is apportioned by geography to guarantee representation for all parts of the state.
There are no such geographical requirements for the state’s two highest courts. Nonetheless, the Virginia Supreme Court has one justice from Russell County, Teresa Chafin. She’s one of just seven justices.
The Court of Appeals stands out because of the sheer number of judges.
With soon-to-be 21 judges, that’s almost enough to have two from each of Virginia’s 11 congressional districts, yet the 9th District in Southwest Virginia would have no residents on that bench. Southside also gets shorted. Kimberley Slayton White from Halifax County is the only Southside member on the court. Randolph Beale grew up in Boydton, but he was a Richmond resident at the time of his elevation to the court.
Does geography matter when it comes to the law? That’s a question beyond the scope of my understanding, although we certainly think so for lower-level judges. General district, circuit court and juvenile and domestic relations judges all come from the localities in which they sit.
At least four states — Illinois, Kentucky, Louisiana and Mississippi — have geographical requirements for their highest courts; they choose state supreme court justices by districts.
So do most states whose intermediate court has a large number of members. Of those appeals courts with 10 or more judges, 16 states chose those judges geographically, nine don’t.
At least one state with a smaller number of appeals judges — Nebraska, whose appeals court has six members — picks them geographically.
Of note: Virginia’s 21 judges on the appeals court strikes some as an extravagant number, but it’s not when compared to many other states. Washington state has 22 appeals judges, Michigan has 25, Arizona 28, Missouri 32, Louisiana 53, Illinois 54, Ohio 69, Texas 89, California 106. All those have some kind of geographical system for those judges.
Minnesota, which has 19 appeals judges, requires at least one from each of the state’s eight congressional districts. If Virginia had a system like that, we’d have at least one appeals judge from each of the state’s 11 congressional districts and 10 others from anywhere. That would guarantee at least one judge from Southwest Virginia, something we don’t have now. (And no, Roanoke is not Southwest Virginia. You can start a good argument in this part of the state by asking where Southwest Virginia begins, but unless you say “at least west of the New River,” then you’re asking for trouble.)
Curiously, Virginia’s constitution once had a geographical requirement for the Supreme Court — not for the members, but where it met. The constitution that Virginia adopted in 1870 required the state’s Supreme Court to meet annually in Staunton, Winchester and Wytheville. The 1902 constitution stripped out the three names and simply authorized the court to meet at “two or more places.” Those two became Richmond and Staunton. The drafters of the 1971 constitution — the one we presently have — removed that provision as unnecessary. There’s nothing to stop the Supreme Court from deciding it could meet around the state; it just doesn’t. The last constitutionally mandated session in Staunton was in 1970.
It would take a constitutional amendment to require the General Assembly to ensure geographical diversity on the state’s highest courts, although no amendment is necessary: The legislature could do this on its own, if the majority party saw fit. We’ll find out by year’s end whether the legislature’s idea of diversity includes the geographical kind — and whether we’ll continue to have an appeals court with just one judge from west of Charlottesville and none from west of Roanoke.
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