Democrats in the General Assembly will soon have the opportunity to change the partisan makeup of the Virginia Supreme Court after the crushing defeat of their redistricting referendum.
In an interview with Virginia Scope last week, Del. Dan Helmer, D-Fairfax, posed the idea that the court’s leading voice of opposition to the redistricting referendum would not be reappointed when his term expires in January. Democratic leaders, however, have not been willing to outright agree with Helmer in public.
Helmer: Remove Justice Kelsey, reform the court
“We will make sure that Justice Kelsey does not serve anymore come this January,” Helmer told Virginia Scope.
Helmer, who argued the Virginia Supreme Court did not respect the Constitution of Virginia in making their 4-3 decision, said the General Assembly will have to reform the court and the judicial appointment process, including term limits, an enforceable ethics code and possibly adding new justices.
Justice D. Arthur Kelsey, 64, authored the majority opinion of the court’s decision against the Democrats’ redistricting referendum. His 12-year term is up at the end of January.
Historically, Virginia Supreme Court justices are reappointed by the General Assembly after their terms expire, unless they plan to retire.
The last time lawmakers removed a Virginia Supreme Court justice for partisan reasons was in 1883, analysts have noted. In the tumultuous years following Reconstruction, the briefly in-power Readjuster Party removed the conservative establishment from courts, including the Virginia Supreme Court.
When the terms for the Readjusters’ appointments expired in 1895, the back-in-power conservative Democrats removed them and began implementing Jim Crow policies.
Democratic leaders walk back Helmer’s comments
Senate Majority Leader Scott Surovell, D-Fairfax, said the judicial reappointment process will carry on the way it always has — though he did not rule out possible reforms or removing Kelsey from the court.
“Sometimes I agree with Justice Kelsey’s opinions and sometimes I do not, just like most other judges I appear in front of as a practicing lawyer,” Surovell said. “We have a judicial re-election process and his re-election will be considered along with about 50 other judges every year, as we always have done.”
Surovell, who chairs the Senate Courts of Justice Committee that vets new judges, pointed to 2015 as the last partisan conflict over the court, though the circumstances were not exactly the same.
Then-Gov. Terry McAuliffe appointed Jane Marum Roush to the Virginia Supreme Court in an interim capacity after Justice Leroy Millette retired in the middle of the summer.
The Republican-controlled Virginia General Assembly declined to reappoint Roush, leading to a debate over constitutionality and the appointment process. They ultimately elected Justice Stephen McCullough in 2016, whose term is up in 2028.
House of Delegates Speaker Don Scott, D-Portsmouth, told WTVR CBS 6 last week that it is inappropriate to be making public comments on jurists at this time, and the General Assembly would go through a “thoughtful, sober-minded” process as per usual.
“We may disagree with that one decision, he’s made other decisions that we agree with and I don’t think you should make any decision based on emotion for a jurist that’s responsible for over nine million people here in the Commonwealth of Virginia,” Scott said. “In this case, we’ll take a look at the record at the time, and we’ll make a decision. We don’t want to rule prematurely or make a decision prematurely.”
Republicans use Helmer’s comments to attack Democrats
State Republican Party leaders decried Helmer’s ideas.
House Minority Leader Terry Kilgore, R-Scott, argued the Virginia Supreme Court did uphold the rule of law and respect the Constitution of Virginia.
“Disagreeing with a decision is one thing, but undermining the legitimacy of our judicial system because you don’t like the outcome is another,” Kilgore stated. “Our courts are not political tools for either party — and Virginians expect leaders to respect that.”
Senate Minority Leader Ryan McDougle, R-Hanover, called on Democratic leaders to speak out against Helmer’s comments.
“Delegate Helmer is attacking the judiciary for following the Constitution after they rejected the lobster-shaped district specifically drawn for him,” McDougle stated.
Former Republican Attorney General Jason Miyares wrote that Helmer was throwing a “temper tantrum” by not wanting to reappoint Kelsey and doing something that “has not happened since the 1800s.”
Helmer ‘said the quiet part out loud,’ Holsworth says
Longtime Virginia political analyst Bob Holsworth said not reappointing Kelsey would be unusual in Virginia, where the Supreme Court is not considered as ideological as the Supreme Court of the United States.
“However, many Democrats, or most Democrats who look at what happened, that’s how they perceive this now,” Holsworth said. “They perceive that a conservative justice overturned what they considered to be the will of the people on very spurious grounds.”
David Poole, a journalist and founder of the Virginia Public Access Project, shed light in his Substack on the past partisan leanings of the Virginia Supreme Court justices using voting and donation records.
Based on the data, the justices who formed the majority opinion against redistricting all lean Republican, while the dissenters lean Democratic.
The terms of all the Republican-leaning justices will be up for renewal before those of their Democratic-leaning counterparts. After McCullough, Justice Teresa Chafin will be up for reappointment in 2031, and Justice Wesley Russell in 2034.
Holsworth said Helmer gave Republicans “ammunition” to attack Democrats on the basis of politicizing the court, leading up to election season.
“What Helmer did was that he said the quiet part out loud,” Holsworth said. “I’m sure there are a lot of Democrats who feel the way Helmer did. But they weren’t going to say it, they weren’t gonna put it on the record.”
Holsworth said there has been “buzz” about what Helmer described since before the Virginia Supreme Court nullified the redistricting referendum. Some Democrats thought the justices would rule in their favor, partly because the justices were up for reelection.
“If they decline to appoint this person, it will look more deliberately partisan than we’ve seen before,” Holsworth said.
The Supreme Court of Virginia’s public relations office did not respond to a request for comment on this story.