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Gov. Kaine taps Millette and Powell

LeRoy F. Millette Jr., Cleo E. Powell and James C. Dimitri now have three of the most prestigious and powerful judicial posts in the state.

The question is whether they’ll have them on Feb. 16.

Gov. Timothy M. Kaine elevated Millette from the Virginia Court of Appeals to the Supreme Court of Virginia after Millette had served well less than a year on the intermediate appellate court, appointed Chesterfield County Circuit Judge Cleo E. Powell to
Millette’s seat and named James C. Dimitri, a partner at McGuireWoods LLP, to the State Corporation Commission.

Millette succeeds Judge G. Steven Agee, who was appointed to the 4th U.S. Circuit Court of Appeals, and Dimitri replaces Theodore V. Morrison Jr., who retired in January.

Kaine filled the vacancies because the General Assembly – with a Democratic majority in the Senate and a Republican majority in the House of Delegates – was unable to agree on candidates, even with the benefit of a special session.

During the legislative sessions, Kaine made it clear that he would have much preferred if the legislature had fulfilled its constitutional mission and made the appointments in the first instance.

That preference reflects the reality that the Virginia Constitution gives the final say in the appointment of judges to the legislature. A governor’s pro tempore appointments are good only until the next session of the General Assembly.

It also acknowledges the comments of the chairman of the House Courts of Justice Committee, Del. David B. Albo, D-Fairfax, after the appointment of Millette and the reappointment of two of his court of appeals colleagues earlier this year that any judge appointed by the governor should be aware that he or she might not get a full term.

Sources familiar with the appointment process said Kaine’s staff, especially senior advisor Mark E. Rubin, conferred with Republican legislators in an effort to win assurance that the three appointees – or perhaps others – were acceptable, but no such assurance was forthcoming.

The appointment of each candidate had logic behind it.

Millette, 57, had a reputation as a strong judge after 17 years as a general district and circuit judge in Prince William County before Kaine appointed him to the intermediate appellate court in November. Kaine and his staff figured that Republicans would be hard-pressed to reject a candidate for the state’s highest court when they had supported him unanimously just a year earlier.

Powell, 51, is held in similarly high regard for her 15 years as a general district and circuit judge in Chesterfield. Perhaps even more important, she is black, and the court of appeals has had only black judge in its 23-year history. Judge James W. Benton Jr., an original member of the court, retired last year and was replaced by Millette.

Dimitri, 57, has a résumé that appears to have every ticket punched for membership on the SCC. More than 25 years ago as a staff attorney for the Virginia Poverty Law Center, he represented the interests of low-income Virginians before the commission.

As an assistant attorney general from 1983 to 1987, he represented consumers before the SCC and the Federal Energy Regulatory Commission and then worked for seven years as an associate and partner at Christian & Barton, mostly on regulatory matters.

He joined the legal staff of the SCC in 1994 and served as general counsel for four years before becoming a partner at McGuireWoods LLP in 2000, where much of his practice has involved representation of Dominion Virginia Power.

However, his representation of the state’s largest utility has drawn some criticism, especially from those opposed to construction of a power line from Frederick County to Loudoun County, and from some environmental groups. Other environmental organizations, such as the Sierra Club and the Chesapeake Climate Action Network, say they have found him to be fair and forthright.

More troubling, from a partisan standpoint, is that he is a friend, neighbor and political contributor to Kaine. Suggestions that he has been a Democratic operative appear to be overblown, however. Reports from the Virginia Public Access Project, which tracks campaign contributions, show that he has donated almost $5,000 to Kaine over the past seven years but only $600 to two other Democrats.

Those with partisan or environmental concerns also note that his Dominion ties will require him to recuse himself from some of the most important issues before the commission.

Discussion of the appointments by Republicans has been muted, overshadowed by reports of a substantial shortfall in state budget revenues.

Del. Bill Janis, R-Henrico and chairman of the subcommittee on judicial systems in the House Courts of Justice Committee, said, “We haven’t had a chance to talk about how we’re going to respond to the governor’s appointments.”

Albo, who was out of state on vacation when the appointments were announced, was also noncommittal, although he recalled his remarks that appointees need to be aware that they might not be appointed to a full term. “It’s a General Assembly appointment,” he said. “It not a governor’s appointment.”

Those comments have special resonance for Millette and Powell, who have given up seats with little prospect that they will return to them if they are not appointed by the legislature.

Still, Kaine apparently figures that he is in a win-win situation. He obviously believes he will be commended for choosing candidates with outstanding qualifications if the General Assembly elects them, while Republicans run the risk of appearing mean-spirited and partisan if they reject them.

Overlooked in the appointments to the statewide posts were the appointments of three circuit judges: Jan Lois Brodie, a deputy Fairfax County attorney, and David S. Schell, a juvenile and domestic relations district judge in Fairfax, to seats in the county, and Charles S. Sharp, the commonwealth’s attorney in Fredericksburg, to a seat in the 15th Judicial Circuit.

The legislative delegations in those areas had signed off on the appointments, but Kaine decided to forgo appointments in Hampton, Norfolk and Newport News, at least for the time being, because of partisan rifts and disagreements among Senate Republicans.

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