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Condo touts VSB’s new way to vet judiciary

The confirmation of Alexandria lawyer Anthony J. Trenga last month to a federal district judgeship vindicates the nominating procedures of statewide bar groups and the bipartisan approach of U.S. Senators John Warner and Jim Webb.

That’s the view of Joseph A. Condo, the McLean attorney and former Virginia State Bar president who took the lead in revising the VSB’s procedures for vetting federal and statewide judicial candidates. “I think it was win-win,” Condo said.

Bar groups had become discouraged about what they viewed as a lack of interest in their participation in the judicial selection process. Bar leaders met with legislators and were told that the General Assembly is more interested in a finding that a relatively large group of contenders is qualified than in the endorsement of one or two candidates for a particular vacancy. The legislators said they also wanted more information about the candidates.

As chairman of the VSB’s judicial nominations committee, Condo suggested rating whoever submitted their names for consideration as highly qualified, qualified or not recommended. He also proposed a detailed written summary of each candidate’s background and qualifications based on interviews of the candidates and confidential interviews with lawyers and others who were familiar with the candidates.

“I thought the stakes involved the bar’s continued presence at the table,” Condo said.

The VSB’s executive committee endorsed those recommendations, and the judicial nominations committee had the opportunity to apply them to vacancies on the Supreme Court of Virginia, the Virginia Court of Appeals and the State Corporation Commission and to two vacancies on the 4th U.S. Circuit Court of Appeals and three openings in the Eastern District of Virginia.

The recommendations were made during unsettling circumstances for judicial appointments on both the federal and state levels.

In the federal arena, Democrat Webb had just upset incumbent Republican Sen. George Allen in an election that saw control of the U.S. Senate swing from the Republicans to the Democrats. Because a president’s judicial nominations are subject to confirmation by the Senate and senators typically defer to the objection of a home-state senator to a nominee, gridlock and finger-pointing became the order of the day in many states.

However, Webb and Warner agreed to jointly submit names to Bush, and all those names were on the list of candidates rated qualified by the VSB committee. E. Duncan Getchell Jr. of Richmond had been recommended for a 4th Circuit seat when Allen was in the Senate, but he was not on the joint list of Webb and Warner.

After Bush nominated Getchell anyway, Webb said he would not support him and Getchell withdrew his name.

Bush later nominated Virginia Supreme Court Justice G. Steven Agee and, a few months later, U.S. District judge Glen E. Conrad of Roanoke. Webb and Warner hailed both nominations and Agee was confirmed to the federal appellate court this summer.

Time appears to have run out for Conrad, however. The Senate Judiciary Committee has not held a hearing on his nomination, and as the congressional year nears its end, no hearings or meetings of the committee are scheduled.

Bush nominated three candidates for district court vacancies: Portsmouth Circuit Judge Mark S. Davis, Assistant U.S. Attorney David J. Novak of Montpelier and Trenga, a partner in the Washington firm of Miller & Chevalier Chartered.

Davis and Trenga were confirmed, Trenga on very short notice, and Novak had a hearing before the Judiciary Committee, but his nomination has been placed on hold for reasons that have not been disclosed. He was involved in the prosecution of terrorist Zacarias Moussaoui, and allegations of ethical shortcomings in that prosecution, although not necessarily by Novak, may be a concern.

The judicial selection and confirmation process was perhaps even more muddled for statewide Virginia positions. Before last year’s legislative elections, the state had a Democratic governor and a Republican legislature. After the election, it had a Democratic governor, a Republican House of Delegates and a Senate controlled by Democrats by the slimmest of margins, 21-19.

Moreover, legislators have the final say on the appointments, and the governor gets involved only when a vacancy occurs when the legislature is not in session or the legislators can’t agree on a candidate. Candidates who accept a gubernatorial appointment do so facing the possibility that they may be out of a job after the next legislative session.

Those procedures make recommendation of state candidates much different from vetting federal candidates, Condo said. The audience on federal appointments are the senators who make recommendations to the appointing authority, and, at least in the case of Webb and Warner, the process been largely apolitical.

In the case of state judges, the audience is the legislators who are the appointing authority and the procedure is anything but apolitical. Although legislators say they are willing to consider recommendations from bar groups, they emphasize that the responsibility for the appointments is theirs, not that of the bar groups or even of the governor.

Nevertheless, the bar’s vetting process is the same, and the appointments to the statewide positions in the last two years all have come from the list of candidates found to have been qualified by the VSB committee.

Condo does have one significant reservation about the procedures used by the VSB and other statewide bar groups. Few women or minority candidates have submitted their names for consideration.

He suggested two reasons for the lack of participation by such candidates: a reluctance to set themselves up to be hurt and disappointed and concerns about giving up a safe judicial seat or successful law practice for an interim appointment.

That concern aside, “It makes me very happy and very proud to see the way it’s happened,” Condo said.

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