Updated: The state Senate Courts of Justice Committee voted Tuesday to nominate former Attorney General Ken Cuccinelli to the Supreme Court of Virginia, a decision that came as a surprise to many in the Capitol.
Liberal and Democratic groups immediately attacked Cuccinelli over his conservative record as a state senator and attorney general and began a lobbying effort with the Twitter hashtag #KeepKenOut. To be elected, he will need to be interviewed by the House Courts of Justice Committee, and questions about his record will likely come up.
The decision follows months of drama between Gov. Terry McAuliffe and Republicans who control the legislature over a vacancy created last year when former Justice LeRoy F. Millette Jr. retired.
McAuliffe made two interim appointments of Jane Marum Roush to the seven-member high court, but Republicans – saying McAuliffe hadn't properly consulted them – have tried to elect a different candidate, Court of Appeals Judge Rossie Alston.
Although the governor can make interim appointments, it is the duty of the General Assembly to elect judges.
But one Republican senator, Glen Sturtevant of Richmond, has sided with McAuliffe, keeping his party one vote shy in the Senate of the ability to elect Alston.
In the committee vote Tuesday, Sturtevant voted with the GOP and said he backs Cuccinelli for justice.
"He served for four years as attorney general of Virginia" and longer than that as an attorney, Sturtevant said. And he said Cuccinelli is "somebody, I think, who's not been politicized" or used as a "political pawn."
"We have to fill the vacancy," Sturtevant said.
Cuccinelli could not be reached for comment. Through a spokeswoman, he issued a brief statement:
"I am humbled and honored to be considered for such a position, but it is not something that my wife and I have previously contemplated. Together, we will prayerfully review this possibility in light of our family’s needs and whether or not this is the best way for us to contribute to making Virginia a better place to live going forward."
Senate Majority Leader Tommy Norment, R-James City County, said in a statement that the Senate has the 21 votes necessary this week to elect Cuccinelli, although he could not speak for the House.
"Attorney General Cuccinelli is extremely well qualified to serve on the court, and he will receive an affirmative vote from all 21 members of the Senate Republican Caucus," Norment said.
Cuccinelli served as attorney general from 2010 to 2014. He ran for governor in 2013, losing to McAuliffe. He's been campaigning for GOP presidential candidate Ted Cruz this year.
In the House of Delegates, the debate over the Supreme Court vacancy took on a racial cast on Tuesday.
The Republican-controlled House approved the Alston appointment on a nearly party-line 66-0 vote. All but one Democrat – Delegate Luke Torian of Prince William County – declined to vote, which is the customary way of indicating opposition to a judicial candidate.
But since Alston failed to get a majority in the Senate, the appointment failed.
Before the House vote, Del. Jackson Miller, R-Manassas, described Alston as "highly qualified" and called attention to the fact that he is black.
Putting Alston on the court would be a "wonderful opportunity" to create a state high court with the most African American members in the nation, Miller said.
That drew a sharp rebuke from one of the House's 13 black members, Delegate Lionell Spruill, D-Chesapeake, who agreed Alston is qualified for the post but suggested Republicans were using the black judge as a pawn to undermine the Democratic governor.
“Don’t try to trick black folks by putting a black person up against black folks,” Spruill said.
Delegate Rip Sullivan, D-Arlington County, said the Supreme Court impasse has become so politicized that the independence of Virginia’s judicial system is at risk.
“This process went badly off the rails,” Sullivan said. “I urge us all to step back from the cliff we have put ourselves on.”
But among House Republicans, Cuccinelli is considered a qualified candidate and serious possibility.
House Speaker Bill Howell, R-Stafford County, said in a statement he is “deeply disappointed” in the failure of the Alston appointment and pledged that House leaders will put another nominee forward before the General Assembly’s scheduled adjournment this weekend.
Cuccinelli’s name has not yet been put forward in the House. If it is, the standard procedure would be for him to be interviewed by the House Courts of Justice Committee, which vets judicial candidates.
The nomination of Cuccinelli was met with criticism from liberal and Democratic groups. The Democratic Party of Virginia called him "a damaging choice for Virginia's Supreme Court" and said his record on women's issues was "openly hostile."
"He is the most extreme and dangerous pick imaginable to serve on the Supreme Court and make decisions about the future of this Commonwealth," read a statement from party press secretary Emily Bolton.
McAuliffe spokesman Brian Coy issued a statement saying Republicans had undermined the credibility of the judicial selection process:
"Jane Roush is a qualified and nonpartisan jurist who is widely recognized as the best person for the job. It would be a disgrace to replace her with an 11th hour candidate whom voters have already rejected as hostile to their values on women’s rights, gay rights, education, health care, the environment, transportation and a range of other issues."
But Norment, in his statement, faulted McAuliffe's inability to work with the General Assembly that led Republicans to look at options other than Alston.
“The intransigence of the Governor and the Senate Democratic Caucus led us to examine qualified candidates who could fill this vacancy and secure the constitutionally required 21 votes in the Senate and 51 votes in the House.
Some Republicans in the General Assembly are discussing the idea of electing former Attorney General Ken Cuccinelli to the Supreme Court of Virginia.
House and Senate Republican leaders have said they want to elect Appeals Court Judge Rossie Alston to the high court. There are plenty of votes to do that in the GOP-dominated House, but Republicans are one vote shy in the Senate, leading to an impasse.
Should they be unable to elect Alston, two lawmakers said, Republicans would discuss other candidates and Cuccinelli’s name is in the mix. Also among those that have been mentioned: Court of Appeals Judges Stephen R. McCullough and Mary Grace O’Brien. The General Assembly is scheduled to adjourn from the 2016 session on Saturday.
The two lawmakers would not be quoted by name because they were revealing details of private discussions. Most lawmakers are staying quiet about the situation because reaching 21 votes on the judicial election in the Senate has been a challenge and there’s uncertainty over what will happen.
The drama stems from a recess interim appointment last year by Gov. Terry McAuliffe, who appointed former Fairfax County Circuit Court Judge Jane Marum Roush to the Supreme Court to replace Justice LeRoy F. Millette, Jr. after his retirement.
House and Senate Republican leaders later said McAuliffe did not properly consult them, and since it was the duty of the General Assembly to elect judges, they preferred Alston and would elect him.
McAuliffe said he got approval from House Courts of Justice Chairman Dave Albo, Republican of Fairfax County, and followed procedure from past governors. The disagreement became a partisan argument that has dragged on since August.
Republicans tried to elect Alston in a special session that month. But moderate Republican Sen. John Watkins of Powhatan County sided with Democrats, giving them a victory and blocking a vote on Alston.
Roush remained on the Supreme Court on an interim basis until February. The seat is now vacant.
Watkins retired and has been replaced in the 10th District seat by Republican Sen. Glen Sturtevant of Richmond, who thus far has gone against his party and sided with McAuliffe's choice of Roush in the court dispute.
Republicans in the Senate have tried to seduce a Democrat to join them in a vote for Alston. But if they can’t, the two lawmakers said, there could be a vote on another candidate.
Cuccinelli was a state senator before serving as Virginia’s attorney general from 2010 to 2014. He was the Republican nominee for governor in 2013, losing to McAuliffe, and is considered a potential GOP candidate for governor in 2017.
Cuccinelli is an ardent foe of abortion and gay marriage, and as attorney general questioned the science behind global warming.
This story originally appeared on PilotOnline.com