Talk:List of justices of the Supreme Court of Virginia

Term expirations

Why do the expiration dates in the table end a day early? (US presidents are elected for four years and their terms start on January 20 and end on January 20 four years later.) I've retained that convention in my update for consistency but I don't understand it. Glanvil (talk) 20:51, 26 September 2019 (UTC)

Succession of Seats 1 and 4 in 2022

I have moved the following discussion from Wikipedia:No original research/Noticeboard#List of justices of the Supreme Court of Virginia original research request:

The List of justices of the Supreme Court of Virginia article has a section describing the succession of seats after 1895. The section includes a table for each of the seven seats listing the chain of justices who succeeded each other in that seat.

In 2022, two justices (Mims and Lemons) retired, creating overlapping vacancies. (Mims retired in April; Lemons retired in February). The General Assembly of Virginia elected two new justices (Mann and Russell) to fill the seats, but not until June. The General Assembly did not indicate which of the two new justices was filling which vacant seat.

When a similar situation arose in 2011 when one justice (Hassell) died and another (Koontz) retired, the General Assembly elected two new justices (McClanahan and Powell) but indicated which new justice replaced which outgoing justice because the judicial interview list shows that of the two new justices, only Powell was interviewed for the Hassell vacancy. A similiar situation also occurred when two vacancies overlapped in 1969 and were filled with appointments by Governor Mills Godwin. Again, on that occasion, Governor Godwin reported to the General Assembly that he had appointed new Justice Cochran to succeed Justice Eggleston and new Justice Harman to succeed Justice Buchanan.

There is no similar indication of which of the 2022 new justices replaced which 2022 outgoing justice. Both new justices were elected on the same day. Two users have asserted that Mann replaced Mims and Russell replaced Lemons, but the media articles they have added to support their citations only say that Lemons and Mims retired, and that Mann and Russell were elected as replacements. The cited articles do not say that Mann replaced Mims and Russell replaced Lemons.

Because there is no publicly verifiable source material supporting the assertion that Mann replaced Mims and Russell replaced Lemons, the two users' revisions making that connection on the Wikipedia article appear to be original research. One of the users who made the change suggested that the connection is implied from the order in which Lemons and Mims vacated their seats, but judgeships are not filled on a first-out, first-in basis. For example, Seat 7 on the United States Court of Appeals for the Fourth Circuit was vacant for 16 years while presidents nominated and the Senate confirmed judges to fill other seats on that court.

An impartial review would be appropriate. Glanvil (talk) 04:56, 5 August 2022 (UTC)

I disagree that there is no source to this effect. The two sources added to the article both say words to the effect that Mann and Russell replaced Mims and Lemons (or Mims and Lemons were replaced by Mann and Russell) in that word order. The consistent use of an order in saying that A and B were replaced by C and D is sufficient indication, in the context of succession of seats on a court that A was replaced by C and B was replaced by D. BD2412 T 05:31, 5 August 2022 (UTC)

The order of the names has not been consistent in press reports. For example, the Associated Press report lists Lemons' retirement first, then Mims' retirement; the same report lists Mann's election first, then Russell's. That's the opposite order compared to the two articles you cited.

The AP version was republished by several news outlets, including DC-area newsradio station WTOP-FM, national newspaper U.S. News & World Report,, and Virginia's legal trade journal, the Virginia Lawyers Weekly.

Because the order used in the press reports is not consistent, choosing which press report to cite is arbitrary and outcome-determinative. Glanvil (talk) 06:35, 5 August 2022 (UTC)

I think it's very clear where the source states, "The Hon. Thomas P. Mann of Fairfax Circuit Court begins his term on August 1. The Hon. Wesley G. Russell Jr. of the Virginia Court of Appeals begins his term on July 1. The new justices fill the openings created by the retirement of Justice William C. Mims, and former Chief Justice Donald W. Lemons". However, just to be sure, I'll call the court and ask. BD2412 T 14:07, 5 August 2022 (UTC)

I am on the phone with the clerk of the court right now, and they have confirmed the succession as stated, noting that the judge taking their seat earlier succeeded the judge who retired earlier. BD2412 T 14:48, 5 August 2022 (UTC)

You are continuing to edit the Wikipedia article about the topic in dispute while my dispute resolution request is still pending here.

I, too, have spoken with the court clerk's office and--contradicting one of your recent edit summaries--office and seating assignments are based on seniority according to when a justice is sworn in, not on which former justice a new one replaced (except for the Chief Justice, who is always the most senior). And the Supreme Court of Virginia Historical Advisory Committee confirms that there is no link between either Justice Mann or Justice Russell with either of the two overlapping vacancies because the General Assembly did not say which new justice was replacing which retired justice. The General Assembly just filled the two existing vacancies.Glanvil (talk) 19:16, 5 August 2022 (UTC)

That's not a contradiction, seniority being based on the first incoming justice replacing the first outgoing justice. In any case irrespective of office and seating assignments, the clerk of the court specifically informed me, as they likely did you, that Mann succeeded Mims and Russell succeeded Lemons. BD2412 T 21:53, 5 August 2022 (UTC)

I have put in an OTRS ticket via an email to the Office of the Executive Secretary of the Supreme Court of Virginia which will settle this beyond further question. BD2412 T 22:18, 5 August 2022 (UTC)

The appointing authority, not the court, is the conclusive authority about who replaced whom, so I did not ask the clerk's office's opinion on that; I asked whether office and seating assignments were based on seniority according to when a justice is sworn in.

I've emailed the Division of Legislative Service's committee counsel for the House of Delegates' Courts of Justice Committee and Senate of Virginia's Judiciary Committee, and the committee chairmen's legislative offices, but I doubt there will be a response before next week. In the meantime, I point out that in the nominating resolutions, Mann is listed first.This is also the order shown in the House and Senate's minutes of the session during which Mann and Russell were elected.

So to the extent your argument depends on an inference that first-in replaced first-out, according to data from the appointing authority from which to draw such an inference, Mann would replace Lemons (whose retirement was effective first), not Mims, even though Mann's term specifically did not begin until August 1; Russell would replace Mims, even though Russell's term specifically began earlier on July 1. My argument, though, is that there is no public, verifiable source material stating who replaced whom, and in my opinion all these conflicting data points weigh in favor of that conclusion.Glanvil (talk) 04:59, 6 August 2022 (UTC)

Where is your source for the extraordinary proposition that after 127 years of having a succession of seats, and 60 actual successions, all having the first to leave the court succeeded by the next to join the court, the Supreme Court of Virginia has suddenly and without notice abandoned the practice of having a succession of seats? That is the source we would need to say that there has not, in fact, been a succession of seats in this case. My argument is that you never bothered to specifically ask who succeeded who in the first place, and I did ask this (because that is the question we are trying to resolve), and I was specifically told by the court that Russell succeeded Lemons and Mann succeeded Mims. The question of who is the "conclusive authority" is nonsense. If this was reported in the Norfolk News you wouldn't be saying that we can't use that newspaper as a source because the newspaper staff are not the "conclusive authority". You also appear to be confused about the relevant dates. Lemons left the court on February 1, 2022. Mims left the court on March 31, 2022. February comes before March, period. The situation would be no different if Lemons left the court on February 1, 2022 and Mims, having already announced his retirement, had continued to serve until mid-July, after Mann took his seat. The situation is the same for all of the 60 prior successions on the court. For example when George L. Browning left the court on August 26, 1947, he was succeeded by Abram Penn Staples, who assumed office on October 7, 1947, even though Henry W. Holt left the court on October 4, 1947. Where is the source stating that there has been a change in this longstanding practice? BD2412 T 00:58, 7 August 2022 (UTC)

The court doesn't decide which incoming justice replaces which outgoing justice; the appointing authority does. For example, when a president sends a federal judge's nomination to the Senate for confirmation, the nomination specifies which judge the nominee would replace. To illustrate, see the bottom of page 8 of the Senate's Executive Calendar for August 7, 2022, showing that President Biden nominated Andre Mathis to be a United States Circuit Judge for the Sixth Circuit vice Bernice Bouie Donald. The Sixth Circuit doesn't decide whose seat Mathis fills, if the Senate confirms him.

The reason we can attribute a chain of title, as it were, to the seats on the Supreme Court of Virginia between 1895 and 1971 is that before the current Constitution of Virginia took effect in 1971, the General Assembly or the Governer had to specify which outgoing justice a new justice replaced, because under Section 102 of the Constitution of 1902, a new justice who was appointed to fill a vacancy created by death, retirement, or removal only served for the unexpired part of his predecessor's term. (Under Section 91, the terms were staggered, so there was no doubt who a new justice replaced if his predecessor's seat became vacant because the term simply expired; only one term naturally expired at a time.) Thus, as the citation in the Wikipedia article already reflects, Governor Godwin told the General Assembly that he had appointed Cochran to replace Eggleston in Seat 2 and Harman to replace Buchanan in Seat 3 when those vacancies overlapped in 1969.

So the period at issue here is not 127 years or 60 successions; it is the 51 years since the Constitution of 1971 took effect. And the reason there hasn't been an issue in that 51-year period, until now, is that there was only one occasions where vacancies overlapped: in 2011, when Koontz retired and Hassell died before the General Assembly elected anyone to fill Koontz's seat. In 2011, the General Assembly indicated that Powell succeeded Hassell and McClanahan succeeded Koontz because, again as cited in the Wikipedia article, the judicial nominee interview dockets show who was interviewed for which seat.

Separately, to return to your Abram Penn Staples example, we know that Staples replaced Browning because Governor Tuck appointed Staples on August 28, 1947 (even though he wasn't sworn in until October 7). We know that Staples did not replace Chief Justice Holt because Holt didn't die until October 4, 1947, so Browning's seat was the only one vacant for Tuck to fill when he appointed Penn in August. I'll be happy to explain any other vacancies you'd like to question, even where they are not overlapping vacancies--just as the Browning-Holt vacancies did not overlap.

You may reject the idea that the appointing authority is the "conclusive authority," but you introduced the idea of conclusivity when you said that "the Office of the Executive Secretary of the Supreme Court of Virginia" "will settle this beyond further question." The OES cannot settle who replaced whom beyond question, because it does not decide who replaced whom. The court could not decide for itself before 1971 which of two justices appointed at the same time filled which of two overlapping vacancies because, as explained above, it made a difference in how long each of the two new justices' terms would be; if the court could decide which justice replaced whom in an overlapping vacancy situation, it would have been deciding how long each of the new justices' terms would be, and it did not have that power; the appointing authority did. Although the Constitution of 1971 ended staggered terms and allows new justices to serve full 12-year terms, regardless of how the vacancy they're filling arose, the Constitution of 1971 did not confer any new power on the court to decide which new justice replaces which outgoing justice, and the court clearly lacked that power before 1971.

Next, if the question of who succeeded whom had been clearly reported in a press article, it may have been sufficient authority to remove the question from the realm of a "no original research" dispute, but a press report can still be mistaken. When there are contradictory, publicly-verifiable sources, there can still be a legitimate debate on Wikipedia about the weight of the sources.

Finally, I am not confused about when Lemons and Mims retired. As I said in my most recent reply (before this one), Lemons retired first. Mann is listed first in the House and Senate nominating resolutions, and is shown as elected first in the House and Senate minutes. There's at least as sound an argument to be made (for purposes of your first-out, first-in theory of succession) that Mann was elected first, so succeeded Lemons, and Russell elected second, so succeded Mims, based on the order of nomination and election, as there is that Russell's term started first, so he successed Lemons, and Mann's term started second, so he succeeded Mims. But I disagree that your first-in, first-out theory is valid; my theory is that the appointing authority has to specify. The implied constitutional requirement to do so (to determine the length of the new justice's term) may have been eliminated in 1971, but the principle is the same: the authority putting a justice on the court is the authority that decides who that new justice replaced. If the General Assembly didn't make that decision this time, then the order of succession is as arbitrary in this instance as it was when the General Assembly filled five overlapping vacancies when it elected a full new bench in 1895. As nice as it might be--as clean and convenient as it might be--for there to be an orderly succession in the seats, there's no requirement for one anymore, after 1971; there wasn't an orderly succession in the seats in 1895, and there may not be one in these two seats now.Glanvil (talk) 01:11, 8 August 2022 (UTC)

I received a response today directly from Senator John Edwards, chairman of the Virginia Senate Judiciary Committee. I have not yet received a response from Delegate Rob Bell, chairman of the House Courts of Justice Committee. I specifically asked Senator Edwards "do you know if there is any public documentation about which Justice filled which vacancy? For example, did Justice Mann replace Justice Lemons or Justice Mims? If there is no public documentation, do you have any insight you can share on that question?" The answer was, "I don’t know which new justice replaced which of the two retiring justices." He also confirmed that there was no intention to indicate a successor based on the start date of each new justice's term. He said he did not know why Justice Mann's term began on August 1, and that Justice Russell would take seniority over Justice Mann on the court because Russell took office first, but that this was "happenstance."

If the chairman of one of the two legislative committees responsible for certifying the candidates for election to the judgeships doesn't know which new justice replaced which outgoing justice, then I renew my assertion that any attempt to establish who succeeded whom in the two vacant seats is purely arbitrary.Glanvil (talk) 22:02, 9 August 2022 (UTC)

References

Glanvil (talk) 22:39, 9 August 2022 (UTC)

The fact that a legislator does not know something that a court employee does know does not render the known thing unknown. Please provide a source for your inherent proposition that after 127 years, the state of Virginia has silently abandoned the documented practice of having the first justice leaving the court succeeded by the first new justice joining the court. BD2412 T 22:52, 9 August 2022 (UTC)

As I have explained, the court has never had a practice that the first justice leaving the court is replaced by the first new justice joining the court. The court does not have the power under the Constitution of Virginia to determine which new justice replaced which outgoing justice. If it were decided by first-out, first-in as you contend, then it would be impossible to determine who, between Cochran and Harman, replaced Eggleston or Buchanan in 1969, and vice versa, when both Cochran and Harman were appointed at the same time. When the appointments are simultaneous, there is no "first."

The General Assembly appoints the justices to the court when vacancies arise when it is in session, as occurred in 2011 and 2022. It decides which new justice replaces which outgoing justice. My source is not some random legislator. It is the chairman of the Senate Judiciary Committee, who was involved in the negotiations to fill the vacancies after they'd been empty for months. If you have a better source than that, please provide it. My source specifically said that Justice Russell taking office first was "happenstance."

The clerk of the court did not appoint the new justices. She doesn't decide who replaced whom, because she has no authority to do so. She doesn't even decide which new justice is more senior; that is governed by statute, which prescribes that seniority is dictated by order of length of service and if there is a tie by length of service, then by age.

You are insisting on a post hoc ergo propter hoc argument--i.e., that because (with three exceptions, 1969, 2011, and 2022) there has been a history of one-justice-out, one-justice-in succession since 1895, that there is a history of first-justice-out, first-justice-in succession. But the Harman-Cochran incident demonstrates that there is no first-justice-out, first-justice-in succession. In every case between 1895 and 2022, we know which new justice replaced whom based on what the appointing authority did. There is no evidence of whom the appointing authority replaced Lemons with or Mims with in 2022--and the appointing authority is the only one with the power to decide the question. Glanvil (talk) 23:41, 9 August 2022 (UTC)

The clerk of the court doesn't need appointing authority to answer a question. The question has been answered. If you find a source that specifically states that the court has abandoned having a succession of seats, or a source that states that Justice Mann succeeded Justice Lemons, please provide that source. BD2412 T 23:53, 9 August 2022 (UTC)

The Appointments section of the Ballotpedia article that you added to the NOR noticeboard and then reverted says that Justice Mann succeeded Justice Lemons. Glanvil (talk) 00:31, 10 August 2022 (UTC)

This is becoming irritating. The clerk of the court, who is in a position to know, expressly stated that Mann succeeded Mims. The clerk of the court expressly stated that Mann succeeded Mims. The clerk of the court expressly stated that Mann succeeded Mims. Can you hear that yet? BD2412 T 01:05, 10 August 2022 (UTC)

Maybe I can explain better why I think your position is flawed with an example. Virginia has two U.S. Senators, Tim Kaine and Mark Warner. Kaine is in Senate Class 1 and he's up for reelection in 2024. Warner is in Class 2 and is up in 2026. Let's pretend Warner resigns effective September 1 to be Secretary of Commerce. Kaine, who has long-Covid (sadly true), retires for health reasons effective September 15. Governor Youngkin gets to appoint someone to fill both vacancies until a special election in November 2023. On October 1, Youngkin announces that he's appointed Jane Doe to the Senate; on October 5, he announces that he's appointed John Smith. Youngkin doesn't say whom he appointed Doe to replace or whom he appointed Smith to replace. But if they both run in the 2023 special election, one of them will be running for 1 year, until November 2024, and the other will be running for 3 years, until November 2026. So knowing whether Doe replaced Warner or Kaine, ditto Smith, is important. Now, who gets to answer that question? Does Smith? Doe? Warner? Kaine? The Secretary of the Senate? The Parliamentarian? The Sergeant-at-Arms? No; each of those people might have an opinion, but only Youngkin can answer it. Only Youngkin had the power to fill the vacancies, so only he can decide. Does it matter that Youngkin appointed Doe earlier than Smith? Does that mean, without Youngkin saying so, that Doe filled Warner's seat and gets to run for a 3-year term in 2023 (and Smith can only run for a 1-year term), just because Warner office left first? No. The only thing that matters is who Youngkin says replaced whom. Everything else is opinion, without legal effect. Glanvil (talk) 01:19, 10 August 2022 (UTC)

There is no point in attempting to reason further with you. You do not have authority for the proposition that the clerk of the court can not answer this question, and the rest is nonsense. BD2412 T 01:23, 10 August 2022 (UTC)

Delegate Bell's office directed me to the Division of Legislative Services Judicial Selection Administrator, who responded today that Justice Russell replaced Justice Lemons and Justice Mann replaced Justice Mims, although this was not based on the dates they started on the court. When a new justice starts on the court depends on "wrapping up cases, personal obligations/scheduling conflicts, etc.," and has nothing to do with which seat they fill.Glanvil (talk) 14:45, 18 August 2022 (UTC)