After brief impasse, senate will consider new judges later

Athey, Phillips find themselves in midst of partisan Assembly squabble

By Amir Vera
Capital News Service

RICHMOND – Former legislators C.L. “Clay” Athey and Clarence “Bud” Phillips will have to wait a bit before they are appointed as judges in Virginia. That’s because Democrats in the Senate recently rejected Republicans’ plan to name Athey, a Republican, and Phillips, a Democrat, as new judges while reappointing 47 incumbent judges.

Democrats like Sen. Donald McEachin of Richmond insisted that the Senate abide by the long tradition of considering new judges separately from incumbents. They did not want to make exceptions just because the two new judges up for appointment were former colleagues.

“We thought it ill-advised to have them get vacant judgeships when we have not looked at the complete picture of vacant judgeships,” McEachin said. “On top of that, we told the Republicans two or three days beforehand that we thought it best to keep with the Senate practice in dealing only with incumbent judges in January.”

According to the Democrats, that is how it has always been done: Incumbent judges usually are reappointed in January; new judges are confirmed in late February. Republicans wanted to appoint the two new judges because the empty seats on the bench create problems in the judicial system.

“So there remain two vacancies that are unfilled and need to be filled,” said Sen. Richard Stuart, R-Montross. “They are having to use substitute judges to run those courts, which is a bad thing.”

However Democrats might say that is a late-in-the-game “rush to judgeship” since at least one of the two seats, the 26th Judicial Circuit that Republican Athey is poised for, has been vacant since Judge William Prosser’s resignation went into effect a year ago, about the same time Athey announced he would not seek re-election in 2011.

The Senate will take up the nominations of Athey and Phillips after Feb. 14, which is “crossover day” – the deadline for each chamber to complete work on its own legislation.

Athey, 51, is a Republican attorney from Front Royal who served in the House of Delegates from 2002 through 2011. He represented House District 18 in the Shenandoah Valley. He was nominated to be a judge for the 26th Judicial Circuit in Harrisonburg.

Phillips, 61, is a Democrat attorney from Castlewood who served in the House from 1990 through 2011. He represented House District 2, which at the time was located in the far southwest corner of Virginia. He was nominated to be a judge for the 30th General District Court in Wise.

The dispute was over House Joint Resolution 246, which contains all of the judgeship appointments.

The House unanimously adopted the resolution on Jan. 24. But when it went to the Senate, Democrats there objected – and effectively shut down the Senate for a few days.

The impasse was broken on Jan. 26 when, at the Democrats’ insistence, the Senate agreed to appoint only the incumbent judges for now.

In refusing to consider new judges in January, Democrats maintained that they were upholding tradition. But Republicans accused them of playing partisan politics. They said the Democrats were flexing their muscles because, for the first time, the Senate is evenly divided between the two parties.

“I was shocked that the Democrats refused to appoint judges, and they specifically said it was because they were unhappy with the Republicans for not agreeing to a power-share,” Stuart said.

McEachin said that in insisting on the appointment of both incumbents and new judges together, Republicans were “acting with a certain level of arrogance, that it was their way or the highway.”

“So we showed them that we were prepared to go on the highway,” McEachin said. “I am happy that they relented and returned to the traditions and practices of the General Assembly by electing the incumbent judges separately, apart from new judges.”

HJ 246 has been referred to the Senate Committee for Courts of Justice.

Included among incumbent judges who were re-appointed were General District Court Judge W. Dale Houff, 26th Judicial District, Shenandoah County/Woodstock and Juvenile and Domestic Relations Court Judge Ronald Lewis Napier, 26th Judicial Circuit, Page County/Luray.

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