Daily Press

Last month when state lawmakers interviewed Virginia judges up for reappointment, the doors were closed to the public and guarded by State Police officers.

Asked afterward about the interviews, some judges refused to say a word about them for fear they would violate an unspoken oath of secrecy.

"It is their hearing, and I'm not going to comment on it," said Suffolk General District Judge William R. Moore.

The same reticence was evident when Newport News attorney Billy Millner was asked about complaints filed against judges with the seven-member Virginia Judicial Inquiry and Review Commission, of which he is a member.

During an interview for this article, Millner called the group's attorney on a conference call and kept him on the line to screen his answers.

Reno Harp III told Millner how to answer every question, several times interupting Millner to interject: "No, no, say this..."

Harp explained his caution this way: "We interpret the constitution to mean everything we say and do is confidential."

This is the nature of Virginia's system of appointing and retaining judges: closed to the public at almost every turn.

From selection to disciplinary review, the Virginia Constitution and state law provide the public with little right to know how its judges are selected or how they perform once they are on the bench. Candidates for judgeships are given written questionnaires that ask about such things as their date of birth or whether they've ever been arrested. But the answers are confidential, marked only for the eyes of members of the Senate and House Courts of Justice committees.

One question not asked is whether judges and judicial candidates belong to private clubs that practice discrimination. On Wednesday, the Senate Courts of Justice Committee will consider a policy barring judges from belonging to such organizations.

Interviews by those Senate and House committees to determine if judges are qualified are conducted behind locked, guarded doors.

Debates among the Democratic lawmakers, who control appointments, are usually conducted in private. It is in these party caucuses that the majority party agrees upon and unites behind the lawyers who will be named to the bench.

However, the House has opened all its caucuses since 1982, when Del. Alson Smith, D-Winchester, took over as the Democrats' caucus chairman.

Disciplinary complaints and actions against state judges are shielded from the public by law, unless they are judged severe enough to be forwarded to the state Supreme Court. That has happened only five times in the past 15 years.

The American Civil Liberties Union is challenging that secrecy on behalf of two individuals seeking to determine the outcome of complaints they filed against judges. The ACLU filed a suit in federal court in December saying the law violates their rights to freedom of speech under the U.S. Constitution by barring them from discussing their complaints publicly.

Virginia also has few set criteria to determine who may or may not be a judge. State law mandates only that candidates be residents of Virginia, have been a member of the state bar for at least five years and uphold the state Canons of Judicial Conduct.

State lawmakers have authority to elect all 321 judges, except when a vacancy occurs before a judge's full six- or eight-year term has expired and when the legislature is not in session. If they fail to fill a vacancy during the session, the appointment also falls to the governor.

State lawmakers and others defend the secrecy as necessary to protect the integrity of the judges selected by the legislature. Lawmakers say they often ask personal questions of judicial candidates that would be inappropriate in public.

"I think it has to be that way," said Attorney General Mary Sue Terry, who served in the legislature prior to her election in 1985.

"Otherwise, judges would be subject to gross forms of intimidation," she said. "The fact of the matter is that on a daily basis judges make decisions that make people unhappy. Pivotal to an independent judiciary is protection from scurrilous and unfounded attack."

Judges who were willing to talk about their interviews before the legislative committees said there was little asked of them that could not be asked in public. "I think everything they asked, and everything I said, could have been printed by you," Newport News Circuit Court Judge Douglas Smith told a reporter after his interview in December.

Most states select their judges through a process that is more open to the public than Virginia's.

In more than half the states, judges are elected directly by the voters.

In other states that use judicial commissions to nominate judges, such as Maryland, interviews of candidates are usually done in private, but the commissions are made up of both non-lawyers and lawyers, and members of both political parties. Written applications from candidates are available to the public.

In some states that use nominating commissions, the public is given the right to decide if a judge should stay in office in retention elections after an initial term in office.

In South Carolina, the only other state in which lawmakers appoint judges, interviews of prospective and current judges are open to the public.

Larry Propes, deputy director of South Carolina's division of court administration, said public charges were made last year that two judges used their positions for their own financial gain. One withdrew his application for reappointment, while the other bowed out in favor of another candidate.

"Without the hearings," he said, "there is no doubt this information would never have become public."

Lawyers up for federal judgeships go through a procedure that is more thorough than Virginia's and open to the public at several junctures where Virginia's is not.

When Newport News lawyer Shannon Mason was being considered for a federal judgeship last year, he had to undergo a confidential criminal background check by the FBI and a review by a committee of the American Bar Association to determine if he was qualified.

According to spokesmen for both groups, such checks include information about a candidate's life from high school onward, including his business and personal associations. Dozens of a prospective judge's associates are also interviewed to determine how his peers view him.

Details of the background checks are not public information, but both groups report their conclusions to the Senate. If the American Bar Association gives a candidate a not-qualified rating, it usually includes a written evaluation explaining the reasons. No such background checks are conducted in Virginia.

Mason also responded to a list of written questions from the U.S. Senate. Part of the questions were made available to the public, but a separate set remained confidential.

Among the public questions were those asking him to name potential conflicts and how he would resolve them, all sources of income, how he served the disadvantaged and whether he belonged to any discriminatory groups.

The separate set of 11 confidential questions asked for more personal details, such as whether he had ever been fired from a job, if all his taxes were paid, whether he had ever had any liens placed against his assets and whether he had ever been sued.

Had he been nominated by the president, he also would have gone before the Senate for a public confirmation hearing. However, questions about Mason's membership in the James River Country Club of Newport News, which has no black members, torpedoed his chances, and he withdrew from consideration.

Candidates for Virginia judgeships fill out a confidential, written questionnaire that asks questions similar to those on the federal form, plus more personal information. It inquires whether a candidate has ever been arrested, has ever been treated for emotional or mental disability, or uses drugs or alcohol.

The state lawmakers who make the appointments say that, while their system is not perfect, it is no more political than the federal system, where the party of the president controls all nominations.

They also say that candidates are closely scrutinized by local bar associations, who know the lawyers up for consideration and usually nominate a candidate.

"I'd never say we do enough," said state Sen. Joseph Gartlan, D-Fairfax, a member of the Senate Courts of Justice Committee.

"You are putting people in offices with awesome responsibilities over people's lives. But at this juncture, I really don't have any practical recommendations for how we could improve it."

Some of his colleagues are calling for the interviews before the Senate committee and its House counterpart to be opened to the public and closed only when sensitive topics come up.

So far, those who want more public input in the process are in the minority.

"I think it works just fine as it is," said Del. Clifton A. Woodrum, D-Roanoke. "Is there any reason it needs to be in public?"

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