Virginia Democrats balk at proposal to retire state Supreme Court

A moonshot proposal reportedly discussed by some Virginia Democrats to attempt to implement the redrawn congressional maps thrown out by the Supreme Court of Virginia on Friday has been abandoned at the launch pad.

On Sunday, The New York Times reported that in a private discussion between Virginia’s Democratic U.S. House members and Rep. Hakeem Jeffries, D-New York, the minority leader of the chamber, an idea was pitched to have state Democrats lower the mandatory retirement age for Supreme Court of Virginia justices from 73 to 54.

The Downballot, a progressive newsletter, published a column proposing a version of the idea on Friday, hours after the court’s 4-3 decision threw out the voter-approved maps.

The proposal would retire the entire Supreme Court of Virginia, as the court’s youngest justice, Stephen R. McCullough, is 54. Then, the Times reported, a new slate of justices could be appointed that would be more sympathetic to the position presented in the referendum.

When asked on Monday whether there is any consideration of the proposal in the General Assembly, Senate Majority Leader Scott Surovell bluntly rejected the idea.

“We adhere to certain norms and a rule of law in our commonwealth,” Surovell said, “and I think that throwing out the entire Supreme Court, including the first Black woman chief justice in 250 years after she’s been on the job for three months, would be a pretty extreme overreaction to what many of us view as a wrongfully decided opinion.”

Surovell’s comments reference the recent elevation of Cleo E. Powell, who penned the dissenting opinion in the redistricting decision, Scott v. McDougle, to chief justice.

On Monday, Gov. Abigail Spanberger responded with a firm “no” to a shouted question from a reporter about the proposal while leaving an event.

The Supreme Court of Virginia did not respond to a Virginia Lawyers Weekly request for comment on The New York Times article.

With Surovell and Spanberger both signaling strong opposition to the proposal, it appears to be a nonstarter for elected officials in Richmond. Despite this, the fact that the proposal was floated at all generated strong reaction from some.

In a statement to Virginia Lawyers Weekly, Senate Minority Leader Ryan McDougle called the proposal “a brazen assault on our democracy” and said that such a proposal means “our founders are rolling in their graves.”

“These hypocrites now pretend to defend democracy by removing lawfully appointed Supreme Court justices because they blocked their illegal rewrite of the [Virginia] Constitution,” McDougle said.

Former Gov. L. Douglas Wilder, who now works as a distinguished professor at Virginia Commonwealth University’s Wilder School of Government and Public Affairs, called the proposal “laughable.”

“If I told you I’m going to give you until tomorrow morning to come up with just one sensible reason why that should take place, you couldn’t do it,” Wilder said. “How and why do you come up with these cockamamie ideas?”

Wilder added that he believed “you can’t find two lawyers, or anybody, that could agree with any of it.”

Stephen Farnsworth, professor of political science at the University of Mary Washington, said, “The idea of mandatory retirement in your 50s for a judge seems ridiculous.

“Democrats wisely abandoned this idea almost immediately,” Farnsworth added. “That strikes most people as pretty unreasonable, and Democrats would pay a high price if they tried to employ this approach.”

Wilder served as governor when the original retirement age of 70 was instituted. He recalled that then-Chief Justice Harry Carrico, who was already over the age of 70 but not subject to the new limit, first tendered his retirement then asked Wilder to reconsider, which he did. Carrico ultimately retired in 2003 at age 86.

“I never even considered asking him to do it, nor following through on it, because he had done and was doing such an excellent job,” Wilder said. “These are studied procedures that have gone through and stood the test of time.”