RICHMOND, Va. — A Virginia Democrat is facing backlash over comments he made about the future of Supreme Court of Virginia (SCV) Justice D. Arthur Kelsey, whose term expires next year.
Del. Dan Helmer (D-Fairfax) spoke to the online publication the Virginia Scope following the 4-3 ruling this month by the SCV that April's redistricting referendum to temporarily redraw the state's congressional map was unconstitutional and nullified the vote.
Kelsey authored the majority opinion.
"We will make sure that Justice Kelsey does not serve anymore come this January," Helmer said, who had announced his intent to run as a candidate in the 7th Congressional District had the new maps been approved.
In Virginia, justices are appointed to staggered 12-year terms by the General Assembly.
Kelsey was first picked in 2015 by a Republican-controlled House and Senate.
He was previously appointed to the Court of Appeals in 2002 by then-Democratic Governor Mark Warner.
His term expires on January 31, 2027 and VCU Political Science Professor Dr. John Aughenbaugh said the decision on whether to reappoint the 64-year-old would be led by the now Democratic-controlled General Assembly (the term would end prematurely as the mandatory retirement of SCV justices is 73).
"Historically, judges in Virginia tend to get reappointed," Aughenbaugh said.
Aughenbaugh says the last time an SCV justice was not reappointed for partisan reasons was 1883, when the Readjuster Party briefly took power.
"What they did when they won control of the General Assembly... they basically did not reappoint any of the judges, which had like a huge turnover," Aughenbaugh said.
Helmer's comments drew backlash from Republicans, including Senate Minority Leader Ryan McDougle.
"Politicians should not be in the business of saying, if we don't like one ruling, then we're going to eliminate your position from the court. Nor should they be in the position of saying, if we don't like one ruling, we're going to pack the court" McDougle said. "The court is a coequal branch of justice. We expect our judges to be able to look at legal issues, constitutional issues, come to the right decision, and make a ruling without fear that a politician is going to eliminate their job when they don't like that one ruling."
When asked about Helmer's comments, House Speaker Don Scott (D-Portsmouth) did not say if he was a "yes" or a "no" on Kelsey, but said appointing judges and justices was the most important duty of the General Assembly and it would go through a "thoughtful, sober-minded" process they take with every appointment.
"Nobody's ever come to me to say whether any justice would be automatically reappointed or not. Even with our last appointment, they had to go through the process. I think we just did one last year when Chief Justice [S. Bernard] Goodwyn stepped aside," said Scott. "There was no public comment on the consideration of his replacement. I think it's inappropriate to be making public comment on jurists at this time."
Scott added that Kelsey has been a "distinguished jurist".
"Although 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 9 million people here in the Commonwealth of Virginia," said Scott. "Judges are never told how they're going to rule on a case before they've seen it. So, 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."
He added Helmer is just one of 140 elected lawmakers who will be tasked with making a decision on Kelsey.
Aughenbaugh warned that if Democrats decide not to reappoint Kelsey, it could set a new precedent that may backfire when they are not in power.
"Do you really want to politicize the state judicial branch going forward?" Aughenbaugh said.
CBS 6 has attempted to contact Justice Kelsey to ask if he had a response to Helmer's comments or if he would be seeking reappointment, but have not heard back.
CBS 6 has also reached out to Helmer for additional comment, but have not heard back either.
CBS 6 is committed to sharing community voices on this important topic. Email your thoughts to the CBS 6 Newsroom.
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