Senate Democrats unconstitutionally attempted to adjourn the 2015 Special Session Monday at the direction of Governor McAuliffe, defying a federal court ruling and ending any opportunity of a legislative remedy on redistricting. However, as Speaker Howell and Senator Norment stated Tuesday, the General Assembly remains in session, leaving the Governor without the power to make interim judicial appointments and calling into question any legal rulings made subsequent to that appointment. From the Washington Post:
Republicans on Wednesday warned Gov. Terry McAuliffe that his plan to reappoint the Virginia Supreme Court justice at the center of a toxic political showdown could subject her rulings to legal challenge. ...But Republicans said McAuliffe’s actions could not only cloud Roush’s tenure but also give aggrieved litigants reason to challenge her authority on the bench. A University of Virginia law professor and the principal draftsman of the current version of the state constitution agrees with them. ... They argued that only the Senate adjourned and the House is still technically in session — so McAuliffe’s power to make appointments does not kick in.
The situation is unheard of in Virginia, making the legal questions murky, but some believe that chaos could ensue. A.E. Dick Howard, the U-Va. law professor, said if Republicans challenged McAuliffe’s authority to reappoint Roush, her judicial opinions could be in doubt.
“That would be sticky,” he said. “Presumably, the authority of that judge to preside over cases would be called into question.” L. Steven Emmert, a lawyer based in Virginia Beach and publisher of Virginia Appellate News & Analysis, called the predicament “a mess largely without precedent.”
If a court eventually rules that Roush’s appointment was improper, he said: “I would expect losing litigants to pounce on it.” That Roush’s current term on the bench expires in mid-September, in the middle of a week-long session of the Supreme Court, only adds to the questions, Emmert said.
“What happens to folks who have arguments [that day]? Who’s going to be sitting there, if anybody? Who will decide if there’s a legal challenge to who’s entitled to that seat?” he said.
Governor McAuliffe and Senate Democrats had no explanation Wednesday for their orchestrated walkout.
A spokeswoman for McAuliffe did not respond to requests for comment on the Republicans’ stance about Roush. ... Sen. A. Donald McEachin (Richmond), an attorney and the Democrat who made the motion that abruptly ended Virginia’s session, said Republicans are wrong — but he declined to explain because the case may end up in court.