Virginia Judges Appoint Judge Rejected By State Legislature For Being Openly Gay

Exactly a month ago, I made note of the fact that the Virginia General Assembly had rejected the nomination of Richmond prosecutor Tracy Thorne-Begland to be a General District Court judge based principally on the fact that he is openly gay. Since the seat on the Richmond General District Court remained unfilled, it fell to the Judges of Richmond’s Circuit Court, the primary trial-level court in the state, to appoint someone to fill the seat on an interim basis until the General Assembly reconvenes. Despite several not-to-so-subtle threats from Republican legislators that appointing Thorne-Begland would cause problems for the Circuit Court Judges when they are up for reconfirmation, the panel went ahead and gave the seat to the person that everyone in Richmond’s legal community seems to agree is extremely well qualified for the position:

RICHMOND — Circuit Court judges have appointed an openly gay prosecutor to the bench just a month after the General Assembly rejected his nomination.

Tracy Thorne-Begland’s appointment to the city District Court judgeship is temporary, lasting only until the next General Assembly session.

The move by the Circuit Court is likely to revive the emotional debate over gay judges that consumed the legislature on the last day of session. It infuriated Del. Robert G. Marshall (R-Prince William), who along with the Family Foundation of Virginia helped convince the General Assembly that Thorne-Begland was unfit for the bench.

“I think it’s highly imprudent and arrogant on their part,” said Marshall. “I hope Virginia understands what’s going on here: They’re contesting the authority of the General Assembly here. . . . This is an act of defiance on their part. When appointed officials get in fights with elected officials, they invariably lose.”

Thorne-Begland will have to face reconfirmation in 2013 and given the fact that he only received 33 of the 51 votes he needed in the House of Delegates it could be an uphill fight. However, there are at least some signs that the backlash against the manner in which his nomination was rejected has caused some Republicans to reconsider their position:

On Thursday, one of several military veterans in Virginia’s House of Delegates dropped his opposition to the appointment of a gay man as a judge, saying that he no longer believes Tracy Thorne-Begland violated Navy regulations when he came out on national television 20 years ago.

In a letter sent to the Republican caucus late last month, Del. Richard Morris (R-Isle of Wight) said he had researched the matter after voting against Thorne-Begland’s appointment in May and concluded that no violation had occurred because the Navy pilot was not in uniform when he challenged the military’s now-defunct “don’t ask, don’t tell” policy on ABC’s “Nightline.”

“My initial opposition to Mr. Thorne-Begland had nothing to do with his sexual orientation but was based on the belief that Mr. Thorne-Begland went on national television in his Navy uniform and spoke against standing Navy policy which would be a violation of Navy regulations and a violation of the Uniform Code of Military Justice (UCMJ) because of the prohibition of being in uniform,” Morris wrote in the letter.

Whether there will be enough of Morris’s fellow Republicans to get him past the 51 vote hump next year is an open question, but one has to think that their arguments against him will begin to crumble away over the next 6-10 months as he actually sits on the bench and hears cases.

FILED UNDER: Gender Issues, Law and the Courts, Quick Takes
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jay_Dubbs says:

    Probably would have been more appropriate to research before you voted no.

  2. al-Ameda says:

    “I think it’s highly imprudent and arrogant on their part,” said Marshall. “I hope Virginia understands what’s going on here: They’re contesting the authority of the General Assembly here. . . . This is an act of defiance on their part. When appointed officials get in fights with elected officials, they invariably lose.”

    Perhaps these statements by Marshall are why people generally have a low opinion of elected officials?

  3. They’re contesting the authority of the General Assembly here

    Oh no! Someone is refusing to respect his authoritah!

  4. Franklin says:

    @Jay_Dubbs: True, but he might have taken someone’s word for it, only to find out later that it was incorrect. I wouldn’t really expect him to personally comb through TV archives.

    In any case, Morris gets a +1 from me for correcting his position.

  5. Anderson says:

    @al-Ameda: Marshall’s statement would make more sense if the panel had, you know, actually done anything defiant.

    In the absence of any statute declaring that a rejected nominee can’t be appointed in a temporary capacity, the only defiance is from Marshall’s brain cells, which are refusing to think.

  6. Anderson,

    There is, of course, no such provision in Virginia law. There was much doubt, though, that the Circuit Court Judges would take this step, which is clearly a thumb in the eye of the House of Delegates, especially since any of them that don’t plan on retiring will be up for reconfirmation at some point. So, I applaud their courage in that respect.

  7. al-Ameda says:

    @Anderson:

    In the absence of any statute declaring that a rejected nominee can’t be appointed in a temporary capacity, the only defiance is from Marshall’s brain cells, which are refusing to think.

    I agree with you.
    I presumed that the Judges were acting legally, and were quite well aware that their action would wake up and set off self-important delegates like Marshall.