Waldo Jaquith

Coincidence? No. Damned? Yes.

Posted by Rick Wellbeloved-Stone on 16 May 2012 @ 10pm

Thanks, Waldo. You can always be counted on when sunshine is needed!

Posted by Claire Gastanaga on 16 May 2012 @ 10pm

I couldn’t have done it without Anna Scholl getting and passing along to me the vote tally sheets! I didn’t even ask her for them—she just up and did it. :)

Posted by Waldo Jaquith on 16 May 2012 @ 10pm

Nice job.

Posted by F.T. Rea on 16 May 2012 @ 10pm

Also possible, but much harder to prove, is that of the ones who left before judges were voted on, there may be some who left for precisely this reason — pretty much assured that their votes weren’t “necessary” for the other judges, but would only affect this vote. I know your fair point is that enough people were actually there and allowed this to happen. Just sayin’ — they’re all accountable.

Posted by Amy Woolard on 17 May 2012 @ 6am

One reason why public servants often get away with inappropriate behavior is that it’s often difficult and annoying for the public to go through the records that document the shenanigans. Kudos to Waldo, Anna, and Andy for taking the time and trouble, on behalf of all of us, to uncover the truth. Not only does it expose the delegates who shamefully shirked their responsibilities, but it preserves the reputations of those delegates with legitimate excuses.

Posted by Craig Fifer on 17 May 2012 @ 7am

There you go again, calling them all bigots off-hand without getting (nor even seeking) their reasoning.

It’s good to be a liberal.

Posted by Michael on 17 May 2012 @ 8am

Thanks for doing this, Waldo!

Posted by Anna Scholl on 17 May 2012 @ 8am

They might be bigots and liars but before we conclude that shouldn’t we at least put their proffered rationale for their votes out there for consideration? My understanding is many members were influenced by the views of delegates with military backgrounds who questioned the judicial candidate’s decisions making based on his record of activism as a military officer. And, there is apparently a tradition in the assembly against affirmatively voting against judicial candidates that existed before this episode. Does that change anyone’s opinion?

Posted by CB on 17 May 2012 @ 8am

[...] labeling these actions for what they are.  Waldo Jaquith does a great job of sorting out the vote here. You can leave a comment, or trackback from your own site. RSS [...]

Posted by Virginia Fails at Basic Human Decency. Again. | Blacknell.net on 17 May 2012 @ 9am

>>Todd Gilbert (R-Shenandoah), Christopher Head (R-Roanoke), Joe Johnson (D-Washington County), Joe May (R-Loudoun), Jackson Miller (R-Manassas), Randy Minchew (R-Leesburg), Richard Morris (R-Isle of Wight), and R. Lee Ware (R-Powhatan).

Disappointed with Johnson, but you can flag May, Miller, and Minchew as delegates who probably represent districts that wouldn’t be too happy with a vote against a fellow just for being gay. They took the coward’s way out on this vote.

Posted by FreeDem on 17 May 2012 @ 9am

I agree that we should not assume that everyone who didn’t support Tracy is a bigot. Bigotry, by definition, requires hatred or intolerance. Although I think there’s good reason to believe that most of the people who didn’t vote for Tracy were uncomfortable with his sexual orientation, that obviously isn’t true for all of them (like Del. Plum, who had a stomach bug, or Del. Englin, who used his very first floor speech to fight against marriage discrimination).

If a delegate voted against Tracy on the mistaken belief that he committed a crime, the delegate might be negligent in his research but I don’t think that’s necessarily the same as hatred or intolerance. If a delegate voted against Tracy out of fear of political retribution, I think that’s cowardice but not hatred or intolerance.

Obviously, a delegate’s bigotry may predispose him or her not to spend the effort to overcome negligence or cowardice. But that’s getting far more speculative about motives.

It’s certainly fair to target the delegates who have made explicitly outrageous comments about Tracy. It’s also fair to say that all the delegates who voted No should have voted Yes, and cite the reasons why. And my comments on Waldo’s previous post underscore what’s wrong with anyone who intentionally failed to vote — regardless of why. But for the delegates who have not explained their actions yet, there’s a dual responsibility. They need to understand that people will reach their own conclusions to fill the vacuum, and we need to avoid making sweeping statements about the essence of people’s characters without having all the facts.

Posted by Craig Fifer on 17 May 2012 @ 9am

All this talk about Tracy doing something illegal : isn’t it illegal to lie to constituents about your vote?

Posted by Karen Pape on 17 May 2012 @ 9am

Waldo,
Only thing I really want to add to this is that it’s generally been the custom at the General Assembly — probably dating back to the days when the vast majority of members were lawyers …. not to vote “no” on judicial nominations. If you are opposed to the nominee, you just don’t vote, since 51 votes are needed for election. So, more surprising than the number of people who didn’t vote on the issue where the 31 who felt it was necessary to insult the nominee by casting a “no” vote and the 10 who voted Rule 69 which has been inaccurately called “abstaining” in the press. You push the yellow button if you have a personal conflict on an issue. Since nobody in the House is related to the nominee or employs him, no one had such a conflict. Rule 69 has sort of become a generic “I don’t want to vote on this” vote, but that’s not its purpose.

Posted by steve vaughan on 17 May 2012 @ 9am

“That’s…51 votes. Ain’t that the damnedest coincidence?”. Seems to me someone out there went to the LBJ School of Vote-Counting. ‘Tis a precise art.

Posted by Woolen Millie on 17 May 2012 @ 12pm

Steve, my understanding of Rule 69 is that is specifically designed to allow a member to force someone who is present but not voting to be considered to have voted No *unless* the nonvoter has a conflict of interest. In other words, it’s intended to provide a disincentive (or at least a recourse) against the very type of situation that played out with Tracy’s election.

But even if no member invoked the rule this time (and I can only guess it’s because everyone was exhausted), we — the public — can do it for them. That’s what Waldo, Anna, and Andy’s research let us do — hold the nonvoters accountable.

Bad traditions shouldn’t be followed. Bad loopholes shouldn’t be exploited. Bad members shouldn’t be re-elected.

Posted by Craig Fifer on 17 May 2012 @ 12pm

Craig: My point was no one invoked the rule this time, because it was a judicial election and that’s the long-time practice on that. Again, my point was, the significant thing is that 31 members were such haters that it wasn’t enough for them to block the guy from getting on the bench, they had to throw a big “no” up there to insult him as well.

Posted by steve vaughan on 17 May 2012 @ 1pm

I can guarantee that the overwhelming majority of Todd Gilbert or Steve Landes’ constituents will not hear about this, or that it will be made a campaign issue when they run for re-election. Mostly because they will not have a viable opponent. In the meantime they are reliable tools in an obstructionist rightwing agenda. We need to make bigotry less safe, or it will continue to fester in the crevices of Virginia.

Posted by Bubby Hussein, Hillbilly Sheikh on 17 May 2012 @ 1pm

Steve: I understand, but I’m saying that either way it’s wrong. If you think that someone is unfit to be a judge in this Commonwealth, your duty as a member of the legislature that elects judges is to vote No. We can argue separately about whether or not you should deem the candidate unfit.

Posted by Craig Fifer on 17 May 2012 @ 1pm

I’m in the 99th HOD District, “represented” by Delegate Margaret Ransone. I emailed her office asking why she did not vote. They replied that she was absent on “family matters” but that “. . . Ms. Ransone was not supportive of this nominee.”

I replied asking specifically why she did not support Thorne-Begland. They replied that she’ll answer me when she gets back to the office Friday.

I’m not holding my breath.

Posted by Old Redneck on 17 May 2012 @ 2pm

> “Bigotry, by definition, requires hatred or intolerance.”

I probably know less about the House of Delegates’ Judicial Approval process than anyone else writing here…

BUT: my understanding from everything I’ve read so far, is that it’s *extremely* rare for anyone to vote “No” by the time a Judicial nominee is up for the vote; that normally, everyone who is present and able to vote “yes” does so.

Considering that precedent, couldn’t a “No” vote, or a conspicuous failure to vote, be pretty fairly construed as “intolerance” ?

Posted by james on 19 May 2012 @ 1am

also:

Even if it’s true that many of the nays and abstinations were due to speeches on the floor from those in the military who questioned the nominees’ miliatery record — wouldn’t it be fair to assume (given that Thorne-Begland’s military record is reportedly spotless, or at least otherwise “normal”) that those speeches against his military background were coming from a place of prejudice? that those speaking against his military record were doing so because of a perceived or assumed transgression on his part (read: basically just being gay) that they personally viewed as “immoral” and thus therefore violated their personal subjective views about what is acceptable in the armed forces?

I’m sure hiding behind the justification that they couldn’t vote for him because he “wasn’t a good soldier” or something may seem convincing to some of their constituents, but in my mind it’s a pretty easily transparent argument; if the Delegates legitimately can’t easily see through that spurious attempt to besmirch the nominee’s reputation, they probably aren’t fit to hold office.

Posted by james on 19 May 2012 @ 1am

There are three additional problems with the criticisms of Tracy coming from legislators claiming legitimate reasons to vote against him:

1. It’s a lie to say that he violated DADT. That policy didn’t exist until December 21, 1993; Tracy went on Nightline on May 19, 1992.

2. It ie a lie to say that Tracy engaged in prohibited partisan behavior by talking publicly about his sexuality. Being gay isn’t Democratic any more than being straight is Republican, as much as these legislators might like to pretend that’s the case. Tracy acknowledging that he is gay is no more partisan than any other enlisted man acknowledging that he’s straight.

3. It is wildly inappropriate for members of this civilian governmental body to attempt to overrule the finding of a military body, which is precisely what they’re doing by accusing Tracy of having violated military law. He was discharged honorably. Period. (See points 1 and 2.)

Rather than just say “we fear homosexuality and we are scared of gay men, in particular,” they’ve ginned up these bullshit excuses about why they voted against him. Guys like Marshall I get. He voted against Tracy because he’s gay. Fine, Marshall is an asshole—there’s really nothing more to be said there. But these guys who pretend it’s just a total coincidence that the only judicial nominee they opposed is the one gay guy? Pathetic.

Posted by Waldo Jaquith on 19 May 2012 @ 9pm

Bad Judgment: Not the Stuff of Would-be Judges
 
A key function of the General Assembly is to elect judges.  Unlike other states, this task falls squarely on the shoulders of the General Assembly and we must select judges of the highest character and ability.  If either condition is lacking, we must ask “is this candidate worthy of selection?”
Such was the case on Monday, May 14th, when the House of Delegates chose not to elect Richmond prosecutor Tracy Thorne-Begland as a District Court Judge.

[Remainder cut for copyright reasons. –WJ]

Posted by Peter McKay on 19 May 2012 @ 10pm

Hey McKay;
There is no higher duty than defense of the Constitution, and the notion that we are all equal before the law. Even the queers. Suck it up nancy. That is all.

Posted by Bubby Hussein, Hillbilly Sheikh on 20 May 2012 @ 8am

The entire “Bad Judgment: Not the Stuff of Would-be Judges” column (that we were already discussing here) was posted in a comment by Peter McKay. Reproducing the whole thing is outside of the bounds of Fair Use, so I’ve clipped it. I can’t seem to find the entire column to link to right now, but anybody who has a link is welcome to toss it up, so that folks who haven’t read it can do so.

Posted by Waldo Jaquith on 20 May 2012 @ 10am

Waldo–here you go http://hamptonroads.com/2012/05/lawmakers-speak-not-stuff-wouldbe-judge

Posted by Kaveh on 20 May 2012 @ 12pm

just because he was honorably discharged doesn’t mean his military record is irrelevant to the question of whether he would be a good judge. he was forced to leave the military because he could not abide by a law he considered unjust. the job of a judge is to apply laws as written that may or may not be just. in light of that fact, it is not bigotry to questions whether he is the best candidate for a judgeship. there are many good and honest lawyers out there who do great work but would make horrible judges. possibly he’s one of them (not my personal opinion but that is the reason why i’m not automatically concluding that anyone who opposed him is a bigot or a coward).

Posted by CB on 23 May 2012 @ 12pm

he was forced to leave the military because he could not abide by a law he considered unjust.

That’s not true. He was forced to leave the military because he was gay. Whether or not he considered it just was irrelevant. If black men were not permitted in the military, and he was found to have a black parent, we would not say that he was forced out “because he could not abide by a law he considered unjust”—we’d simply say that he was thrown out for being black. Tracy was thrown out for being gay.

the job of a judge is to apply laws as written that may or may not be just.

That’s also not true. Judges quite often decline to punish people who have broken unjust laws, in a practice known as “judicial nullification.” (There’s a whole book on the topic, “Discretion to Disobey: A Study of Lawful Departures from Legal Rules.”) That’s why we have judges. Otherwise, sentencing would not require a judge at all. If a judge finds that the public wellbeing is better served by nullifying the law, and that doing so would avoid injustice, then those are the basic circumstances under which he may (and probably should) do so.

You may imagine a “three-strikes law” in which a judge finds herself faced with somebody who committed two victimless crimes fifty years previously, and now has been arrested for growing a lone marijuana plant, which he is consuming to alleviate the effects of chemotherapy, which she’s undergoing to extend his final months of life with end-stage cancer. That judge can either a) sentence him to life in prison or b) sentence him to absolutely nothing, which is well below sentencing guidelines. Most people would be rightly outraged by a prison sentence for this poor man—it benefits nobody, and harms the man. The proper thing for a judge to do is nullify the law. This happens pretty routinely with three-strikes laws, because sometimes to follow such laws leads to absurd punishments.

For more on this general legal concept, see my 2006 blog entry on the topic of jury nullification.

Posted by Waldo Jaquith on 23 May 2012 @ 10pm

Under DADT he could have continued serving as long as he remained closeted. That may have been a stupid and cruel policy but he did have the option of continuing to serve. I couldn’t disagree more with your second point – sentencing is a particular area of the law where judge’s are specifically given discretion, it is not an example of a particular application of some general rule of “judge nullification” that could apply to any law that in the judge’s opinion does not serve the “pubic well being.” (I also feel compelled to say again that I don’t personally oppose Mr. Thorne-Begland’s judgeship but am merely making the point that there were grounds to oppose him that did not constitute outright bigotry).

Posted by CB on 25 May 2012 @ 3pm

there were grounds to oppose him that did not constitute outright bigotry).

You are so right. Our legislature is under the influence of the Christofascist lobby.

Posted by Bubby Hussein, Hillbilly Sheikh on 25 May 2012 @ 4pm

Tracy came out publicly *before* DADT went into effect. Please read Claire Guthrie Gastanaga and John Hutson’s story “Misjudged” in Style Weekly, which gives a good rundown of the facts. http://www.styleweekly.com/richmond/misjudged/Content?oid=1713533

Posted by Amy Woolard on 25 May 2012 @ 4pm

Ok, thanks for the corrections, I think I have the timeline down now – joins the navy, comes to terms with being gay once already an officer, resigns once DADT goes into affect – correct?

Posted by CB on 25 May 2012 @ 5pm