Civic Association Newsletter

March/April 1997 - Volume 20, No. 5


The Virginia Constitution requires that judges be elected by the General Assembly. For the past 100+ years, the General Assembly dominated by one political party rule, the Democratic Party, has made its judicial decisions behind closed doors, sometimes awarding judgeships to cronies and former legislators and without regard to the most meritorious candidates.

When the Senate split 20-20 between the Democratic Party and the Republican Party in 1995, the judicial selection process began to change. Since then, the Senate has had veto power over judicial appointments.

On Sunday, Feb. 23, 1997, the Roanoke Times reported in an article titled "Allen to Name New Justice" that Republican Gov. George Allen will fill the open slot on the Virginia Supreme Court, because members of the General Assembly were unable Saturday to do it themselves. In their article, staff writers Laura LaFay and Robert Little stated "If politics continue to thwart judicial appointments next year, some legislators predict, Virginia will be forced to find a new way of picking judges."

The writers quoted Senator William Bolling (R), Hanover County, Virginia, who said "If there's ever been any question about whether Virginia needs a better system of selecting judges, just look at the spectacle we have here today. You shouldn't have to barter to pick a member of the Supreme Court; you should consider qualifications. That hasn't even come up."

Also, the writers quoted Delegate Jay DeBoer (D), Petersburg, Virginia, who said "Actually, direct election of judges would be better than this. This process is broken. We've disagreed before about philosophy and individuals, but... this is the first time it's been purely partisan."

Last year, six judgeships went unfilled because Democrats and Republicans could not agree on judicial candidates. This year, six more slots remain empty, based on minutes from the General Assembly home page, for the Senate, Friday, February 21, 1997.

The following persons were nominated to be elected (House Resolution No. 44), approved by the House of Delegates to the respective circuit court judgeships, and defeated by the Virginia Senate on February 21, 1997.

1) The Honorable J. R. Zepkin, of Williamsburg, as a judge of the Ninth Judicial Circuit to sit predominantly in the Williamsburg-James City County court for a term of eight years commencing March 16, 1997. Although approved by the House Democratic majority, the Senate voted 40-Y for Thomas B. Hoover for the Ninth Judicial Circuit.

2) The Honorable James L. Berry, of Winchester, as a judge of the Twenty-sixth Judicial Circuit for a term of eight years commencing August 1, 1997. Although approved by the House, the Senate voted 39-Y for John R. Prosser for the Twenty-sixth Judicial Circuit.

The following person was nominated to be elected (House Resolution NO. 45), approved by the House of Delegates to the respective general district court judgeship, and defeated by the Virginia Senate on February 21, 1997.

3) John H. Underwood, III, Esquire, of Portsmouth, as a judge of the Third Judicial District for a term of six years commencing April 1, 1997. Although approved by the House, the Senate voted 19-Y for John H. Underwood and 20-Y for Morton V. Whitlow for the Third Judicial District.

The following persons were nominated to be elected (House Resolution No. 47), approved by the House of Delegates to the respective juvenile and domestic relations district court judgeships, and defeated by the Virginia Senate on February 21, 1997.

4) Carol J. Gravitt, Esquire, of Halifax, as a judge of the Tenth Judicial District for a term of six years commencing July 1, 1997. Although approved by the House, the Senate voted 23-Y for Marshall L. Ellett for the Tenth Judicial District.

5) J. Overton Harris, Esquire, of Hanover, as a judge of the Fifteenth Judicial District for a term of six years commencing March 1, 1997. Although approved by the House, the Senate voted 40-Y for Larry E. Gilman for the Fifteenth Judicial District.

6) The Honorable David B. Summerfied, of Scott, as a judge of the Thirtieth Judicial District for a term of six years commencing February 21, 1997. Although approved by the House, the Senate voted 39-Y for Gregory Baker for the Thirtieth Judicial District.

Jeff E. Schapiro, Staff Writer for the Richmond Times-Dispatch reported in his Saturday, Feb. 22, 1997, article titled "Legislators fail to elect justice of Supreme Court," that weary Virginia legislators tried -- and failed -- nine times yesterday to elect a Supreme Court justice. Also, he stated that "The Supreme Court seat wasn't the only one to fall prey to partisanship. Winchester Circuit Judge James L. Berry was backed by the House, but the Senate tapped lawyer John R. Prosser, in part, as retaliation for Berry's refusal to renew the concealed weapons permit he granted Oliver L. North, the GOP U.S. Senate nominee in 1994. After the assembly adjourns, Allen can select Berry's successor. "That was my strategy all along," said Sen. H. Russell Potts Jr., R-Winchester, who led the charge against Berry."

Tyler Whitley, Staff Writer for the Richmond Times-Dispatch, reported in his Tuesday, Feb. 18, 1997, article titled "Judge Berry: Who has it right?," that "To a group of Winchester-area lawyers, Clarke County Circuit Judge James F. Berry is a paragon of rectitude and good judicial temperament. To a smaller group of lawyers who practice before Berry, he is rude and degrading to women. To Sen. Joseph V. Gartlan Jr., D-Fairfax County, who listened as two lawyers trashed Berry in an open Courts of Justice Committee session, the opposition was nothing more than 'drummed-up political thuggery.'

Gartlan, chairman of the committee, said he heard nothing from the opposing side to dissuade him from his belief that Berry should be reappointed to the bench. He said the opposition's comments were anecdotal, impossible to respond to and, in some cases, hearsay. Gartlan and fellow Democrats are at odds with Sen. H. Russell Potts Jr., R-Winchester, and his Republicans over the reappointment of the 63-year-old jurist. Potts is backing John Prosser, a Winchester lawyer and friend. Berry has the backing of the local bar associations...Is this reappointment to be determined by his decision in one case?" asked Robert T. Mitchell, a Winchester lawyer.

Berry said after the hearing he was mistaken in granting North the permit the first time. Since North was making an issue of character during his Senate campaign, Berry said in a prepared statement, he felt that North's role in the Iran-contra scandal showed a character flaw. Berry said "appearances might dictate" that the fight against him was motivated by politics."

If Gartlan, Chairman of the Senate Courts of Justice Committee, was not dissuaded from his belief that Berry should be reappointed to the bench, then why did he and his fellow Democratic Senators desert the Honorable James L. Berry, of Winchester, on Friday, Feb. 22, 1997, when the Senate voted 39-Y for John R. Prosser? It is interesting to note that at least two of the Arlington Senators (D), and possibly the third member, joined the 39 of 40 Virginia senators in voting-out the Honorable James L. Berry.

Also, it should be noted here that the Virginia Senate voted 40-Y to approve Dorothy H. Clarke, Esquire, of Arlington, as a judge to the Arlington General District Court, of the Seventeenth Judicial District, for a term of six years commencing March 1, 1997. Also, the Virginia Senate voted 33-Y to approve the Honorable William Newman, of Arlington, as a member of the Judicial Inquiry and Review Commission for a term of four years commencing July 1, 1997.


The VIA Coalition appeared before the Senate Courts of Justice Committee in Richmond on Monday, February 17th, to testify in opposition to the nomination of Dorothy Clarke for the Arlington General District Court bench. According to the VIA Coalition's President, Amy M. Jones-Baskaran -- herself a lawyer -- the VIA Coalition has long been an advocate of nonpartisan, merit selection of judges -- and opposed to the political cronyism that has characterized Virginia judicial appointments. She stated that the Senate had passed judicial nomination reform four times, only to have the bill killed in the House Courts of Justice Committee, chaired by Arlington Delegate James Almand -- the same individual who had selected Ms. Clarke.

Noting that the VIA Coalition's opposition was "nothing personal," Mrs. Jones-Baskaran went on to state that VIA was opposed to Ms. Clarke because she was the least qualified candidate for the position according to her peers on the Arlington County Bar's Judicial Selection Committee, the next-to-least qualified according to the Bar's general membership, and was a political crony of Delegate Almand. "This morning," she said, "the committee has inquired very pointedly of every single candidate from other districts about their ranking with their local bars, but ironically no such question has been asked of Ms. Clarke."

Mrs. Jones-Baskaran stated that the Arlington political elites had sought to hide the poor showing of Ms. Clarke, and that Kevin Appel, Arlington Bar President-Elect and the Assistant County Treasurer, had refused to release publicly the Bar's votes, which was unprecedented.

Mrs. Jones-Baskaran noted that when Clarke was appointed as a substitute judge by Chief Circuit Court Judge William Winston, two-thirds of the Bar had found her to be "not qualified or qualifications unknown in 1991." Mrs. Jones-Baskaran also took to task the Arlington County Treasurer, Francis O'Leary, when she stated that "it is hardly a 'fringe' concept that the judiciary should not be a mere extension of the legislative and executive branches" in Arlington; "it is a fundamental tenet of constitutional democracy."

Additionally, Mrs. Jones-Baskaran said the VIA Coalition provided an information package to the Senators on the Committee that included a videotape of Mr. Appel's public statement last October 5th in which he said he was "taking credit ... for all the judges that have been appointed." This package also included critical information about the financial relationships of certain applicants to the Arlington County Circuit Court in 1993 and the VIA Coalition concerns that (1) the independence and objectivity of the Circuit Court could be jeopardized by these relationships; and (2) certain applicants may be guilty of ethical violations. According to Mrs. Jones-Baskaran, the VIA "Judicial Notebook" was distributed to every member of the 1993 General Assembly.


BVSCA President Ragland also appeared before the Senate's Courts of Justice Committee in Richmond on Monday, February 17th, to express concern about the judicial nomination process and Dorothy Clarke's nomination to the Arlington General District Court bench. According to BVSCA President Ragland, his primary concern was the flawed judicial partisan process used for nominating applicants to the bench and the absence of public participation in the Virginia judicial nominating process. He stated that only two other states have such a process for nominating judges to the bench. These states are Rhode Island and South Carolina. BVSCA President Ragland said the Arlington County Civic Federation in its 1997 Legislative Package had urged the Virginia General Assembly to initiate a study to develop a less partisan process for nominating judges than currently exists.

Although he had no personal objections to Dorothy Clarke's nomination, BVSCA President Ragland expressed concern about the apparent lack of separation between the Executive Office, the Arlington County Board, and the Arlington judiciary. He cited the Stuart Park land deal and the public condemnation actions initiated by the Arlington County Board and the Arlington judiciary, as an example. BVSCA President Ragland said the County Board had acquired this property at a cost of over $3 million in 1990 [purportedly for street widening purposes, although the street widening was not included in the County's Master Transportation Plan of 1986, the existing plan at the time of the County's acquisition] and then later sold most of the property in 1996 at a material reduction in price for only $365,000.

Also, BVSCA President Ragland expressed concern about the independence and objectivity of the Arlington Court System in other cases and said he would later send a letter to the Committee, detailing some of these cases.


[It should be noted that the following Arlington Journal editorial and letters are copyrighted. The contents may not be reproduced without permission of the publisher, The Arlington Journal, 2720 Prosperity Avenue, Fairfax, Virginia 22034-1000. The Civic Association received permission to publish this information in the Ballston-Virginia Square Civic Association Newsletter.]

HAS BUDDY-BUDDY AND GENDER politics played a part in the recommendation of Dorothy Clarke to become an Arlington judge? Undoubtedly. Do the machinations of Clarke's nomination mean Virginia should change the way it selects judges? No.

Let's be blunt: Clarke has an edge in this process because of state Del. Jim Almand, D-Arlington. They work in the same office building and they share a phone number, a fax number and a receptionist. The county's delegation to Richmond forwards recommendations to the full General Assembly on who local judges should be, and Almand also chairs the influential House Courts of Justice Committee that vets the recommendations. How convenient.

To prevent any further appearance of favoritism or conflict of interest, Almand must abstain from voting on Clarke's nomination.

Now, Clarke did not fare as well as three other candidates in surveys turned in by Arlington Bar Association members. But those other three were men and the judge who is stepping down to create the vacancy is a woman: Eleanor Dobson. That had to cross the minds of the six-member Arlington delegation (five of whose members are women). Three of the nine Arlington judges are women, and Clarke herself said the county shouldn't "move backward" on those numbers.

Of course the county shouldn't move background, but the main issue should be finding the most qualified candidate regardless of sex or gender. Right?

All of this is a long-winded way of acknowledging that the process of selecting judges isn't always pretty. But we're not convinced the process should change. Electing judges would be unseemly, and any allegedly impartial commission that selects judges has its own political soft spots too.

There is no evidence that Virginia judges are, on the whole, anything but ethical and hard-working. At this point we have every reason to believe Dorothy Clarke would uphold that tradition.

THE ARLINGTON JOURNAL JANUARY 30, 1997, "Arlington episode shows chicanery of picking Virginia judges" In my opinion, Amy M. Jones-Baskaran, President of the Volunteers for An Independent Arlington Coalition

Thumbs down to The Journal for endorsing the most corruptible process for selecting judges, and the one with the least public access and input.

You assert that even nonpartisan merit selection of judges has its "political soft spots" (editorial, Jan. 17). Well, a soft spot is a darn sight better than the gaping wound of political cronyism that we have now.

The Arlington delegation to the General Assembly chose to ignore more highly qualified candidates for the upcoming opening on the Arlington General District Court bench in favor of nominating for General Assembly consideration a less qualified candidate (fourth in a field of five), Dorothy Clarke.

Ms. Clarke is a political insider sharing office space with Del. James Almand, D-Arlington. Ms. Clarke has a longtime connection to the local political monolith, including being the first wife of the late Democrat and Arlington delegate, Warren Stambaugh.

Is it any wonder, then, that under Del. Almand's chairmanship, the House Courts of Justice Committee has repeatedly deep-sixed judicial merit selection reform passed by the state Senate four times? Why reform a process when your hand-picked candidates can be appointed with little or no public scrutiny or input?

Political cronyism also explains why the Arlington delegation, with Del. Almand as senior member: (a) disregarded the Arlington Bar Association Judicial Selection Committee's findings on the relative lack of experience of the delegation's nominee, Clarke; (b) ignored the Bar members' votes supporting more highly qualified candidates; and (c) failed to mention that in 1991, "two-thirds of the attorneys listed Clarke as 'not qualified,' or said her qualifications were 'not known,'" according to a Journal article, but nevertheless she was appointed as a substitute judge by Chief Circuit Court Judge William Winston.

Even after her judicial service, Clarke gets barely passing marks from the Bar. Despite their time, effort and opinion being scorned by the Arlington delegation, Bar members are silent. Their livelihoods are on the line if they buck the system.

Under the leadership of Kevin Appel--president-elect of the Arlington Bar, assistant county treasurer, former chairman of the Arlington County Democratic Committee, member of the board of directors of Demeter House and who knows what other hats we missed--we are informed that the Bar's Judicial Selection Committee report as well as the general Bar membership's votes will not be released to the public as they have been in the past for the benefit of the Bar, the legislators and the public--after all it is a public office.

Mr. Appel says the results are confidential to protect the candidate's privacy. Baloney.

The results were posted in a public place (the Bar Library at the Arlington Court House) after the evaluation and voting process was concluded. Further, candidates were given a chance to drop out rather than have their Bar "peer review" released. Mr. Appel's sudden assertion of "confidentiality" is nothing more than a sham to hide results that don't support the political outcome--no matter how Mr. Appel wants to spin the story.

Mr. Appel also claims that public release of the Bar's judicial nomination results in the past have been aberrations. We're not buying it.

We predict that the Bar's Board of Directors (with the county establishment input) will institutionalize Mr. Appel's disingenuous position in its upcoming Feb. 5 meeting. Sadly, we are observing firsthand how Mr. Appel can claim responsibility for the selection of all the Arlington County judges (as well as election of all the current Arlington County Board members) as he did in the County Board's public meeting on Demeter House last Oct. 5.

Is judicial selection "of, by, and for" political insiders how our government should work? Does it support judicial independence? The commonwealth is one of only three states still using this political spoils-allocation process. We deserve a time-proven nonpartisan merit selection process for judges. Remember, as Supreme Court Justice Louis D. Brandeis aptly said, "Sunshine is the best disinfectant."

Mr. Appel should release the findings of the Judicial Selection Committee as well as the Bar members' votes on candidates' qualifications. The Arlington delegation should explain its disregard of more meritorious candidates. And the General Assembly should exercise leadership in the best interest of judicial independence and reject this shameful Appel-Almand mockery.

THE ARLINGTON JOURNAL, FEBRUARY 6, 1997, "No Political Monolith in Arlington"

FRANK O'LEARY Arlington County Treasurer

I write in considerable anger and disgust to refute the totally baseless charges of Amy M. Jones-Baskaran in her Jan. 30 opinion piece entitled "Arlington episode shows chicanery of picking Virginia judges."

Ms. Jones-Baskaran charges state Del. Jim Almand, D-Arlington, with rigging the selection process for a new General District Court judge for the benefit of Dorothy Clarke, with whom he shares an office suite. Ms. Jones-Baskaran is perhaps the only person with any interest in this matter not aware of the widely held belief, certainly among us "insiders," that Mr. Almand's first choice was not Mrs. Clarke. I am not even certain she was his second choice.

Arlington Bar President-Elect Kevin Appel is likewise lambasted by Ms. Jones-Baskaran as a "political insider" who manipulated the process for Mrs. Clarke and is attempting to cover up his tracks by not publicly releasing internal Bar data. Again, Ms. Jones-Baskaran is out of her depth.

Mr. Appel did not support Mrs. Clarke, nor did he agree with Mr. Almand's choice. He widely circulated a letter urging the appointment of a third attorney. So much for the political monolith fantasized by Ms. Jones-Baskaran.

Dorothy Clarke has lived in Arlington for nearly 30 years and been a tireless community leader in dozens of good causes. Dorothy is incorruptible, ethical, and possesses an innate sense of justice. She will make a great judge.

I suppose that a county as civilized as Arlington must be tolerant of those fringe element conspiracy theorists who slink among us. I do hope, however, that Ms. Jones-Baskaran gets her facts straight before her next attempt to destroy the reputations of totally honorable people.

THE ARLINGTON JOURNAL, FEBRUARY 12, 1997, LETTER TO THE EDITOR: Thanks for the peek inside the machine THOMAS W. BROOKE Arlington

The writer is treasurer of the Arlington County Republican Committee.

In defending his Democrat machine colleagues from charges of rigging the judge selection process, Arlington Treasurer Frank O'Leary (Letters, Feb. 6) raises more questions than he answers.

Arlington is controlled by a well-oiled, one-party political machine. Mr. O'Leary, potential judge Dorothy Clarke, and the folks Mr. O'Leary sought to defend, Kevin Appel and state Del. Jim Almand, are all major players in that machine.

Mr. O'Leary said Amy Jones-Baskaran; who dared to criticize the machine (column, Jan. 30), is "the only person with any interest in this matter not aware of the widely held belief, certainly among us 'insiders,' that Mr. Almand's first choice was not Mrs. Clarke."

Thank you for explaining, Mr. O'Leary. Most Arlingtonians are not insiders, and we don't know what goes on inside the machine.

Mr. O'Leary's final paragraph was the most disturbing. He called for tolerance, then darkly referred to "fringe element conspiracy theorists who slink among us." These people are called citizens. They're also taxpayers and voters. Perhaps Mr. O'Leary and his cronies should pay attention.

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