RICHMOND — The day Virginia legislators interview candidates for judgeships is usually boring.
The candidates come before a panel of lawmakers, talk for a few minutes about why they want to be a judge, answer a few questions, answers to which could be found on their resume, and leave.
Tuesday was different.
Sen. Joe Morrissey, D-Richmond, was grilling Kathleen Uston, who was interviewing for a circuit court judgeship in Alexandria, about her qualifications. Uston is a adjunct professor at American University Washington College of Law and former assistant counsel for the Virginia State Bar. He rattled off questions to show how she hadn’t tried a criminal jury trial in the last decade, hadn’t served as a public defender, hadn’t argued before the Virginia Court of Appeals and more.
Then Morrissey raised the issue that Uston’s husband and Del. Marcus Simon, D-Fairfax, are law firm partners and whether that had been properly disclosed. Then some members of the public weighed in on Uston’s candidacy, challenged her character, and asked her questions, which lawmakers said was inappropriate.
“John, don’t let this be a mockery,” Sen. Louise Lucas, D-Portsmouth, said to Sen. John Edwards, D-Roanoke, who was the chairman of the panel and failed to get control of the situation.
“This is a f------ s---show,” said Sen. Ryan McDougle, R-Hanover, not realizing he was on a live microphone (that moment appears to have been edited out of the archived video, and McDougle said he didn’t ask anyone to do that).
Simon said he wasn’t trying to hide his relationship with Uston, and he planned to publicly disclose it to the panel. He added Uston lists her husband’s law firm in the paperwork the panel has. He apologized to Uston, saying that he told her the interview process would go differently.
“What you just experienced is nothing like what I described, because that is nothing like I’ve ever seen,” Simon said.
Legislators have been more zealous over the past year about questioning judicial candidates, turning what was once more of a formality into an event where they try to dig into the kind of judge they’ll put on the bench.
“My philosophy has been that it’s to give anybody who does have questions or objections an opportunity to be heard, and for the lion’s share of candidates, they’re well-qualified,” said Sen. Mark Obenshain, R-Rockingham, who sits on the panel.
The public doesn’t see where most of the vetting of candidates happens. It’s customary for a local delegation to come to a consensus around a judicial candidate. That candidate is then submitted to the panel of lawmakers to interview. In past years, the interview only lasted a few minutes, and was conducted in person in Richmond, with no live video stream.
A lawmaker from the area where that candidate is from gives an introduction and talks about why the person is qualified, and there’s little back and forth between lawmakers and the candidate.
But when Democrats took control of the General Assembly last year and criminal justice reform became a major focus, there was a shift.
Last year, Democrats asked tough questions of prosecutors wanting to be judges. They wanted to know if they could be fair as judges after prosecuting people for so long and how they’d treat people who may come before them that they’ve put behind bars before. They prodded them about their views on mandatory minimum sentences and other criminal justice policies.
“We’ve got to ask probing questions,” Morrissey said.
Simon said after the judicial interviews that Morrissey’s questions were fair, but he thought Morrissey “had an agenda.” Morrissey lost his law license in 2018, and while Uston prosecuted disciplinary actions against Virginia attorneys when that happened, Simon said she was not involved in his disciplinary proceedings.
“He seemed to be going after her with a certain amount of intensity,” Simon said. “It felt personal.”
Morrissey said he doesn’t know Uston and he was solely focused on her qualifications.
“The questions should have been tougher,” Morrissey said. “I think she’s woefully unqualified.”
Lawmakers have expressed frustration in the past several years about the candidates they’re getting for the bench. They said they’re seeing a lot of younger people, rather than people at the peak of their legal career who would close it out with being a judge. They complain that too many career prosecutors are seeking judgeships, rather than people with diverse legal backgrounds.
“It’s a big issue, particularly from people who complain we have too many prosecutors in the pool,” Obenshain said.
McDougle proposed two years ago changing the retirement system for judges to encourage older, more experienced attorneys to apply to become judges. Because the vesting system is more beneficial to those who join the bench earlier or prosecutors joining the bench, lawmakers say they think that has contributed to the younger and inexperienced pool of candidates.
Simon said he has no problem if lawmakers want to use the panel interview process to scrutinize the candidates more closely. But he said there should be some consistency so it’s not just one or two people facing intense questioning and others don’t get asked any questions.
“It can’t be a game of roulette,” he said.