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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm so confused. I live in a state of confusion. I don't live in Virginia. I live in confusion. The Commonwealth of Confusion.
J. Aughenbaugh: The Commonwealth of Confusion. I got to admit, politics, particularly of this decade but perhaps even this millennium, does hearken back to my youthful days to where, usually because of actions that I took, I was frequently in a state of confusion, but there have been some strange goings-on, as our ancestors would say, in the Commonwealth of Virginia, politically.
N. Rodgers: Indeed. It almost is like we've been that ancient Chinese custom. You live in interesting times. I don't know what I did in a former life, but I'm sorry. I'm sorry. Could it be less interesting now? I'm sorry for whatever it was that I did. Yes. Because I need you to explain to me. We did our episode on the redistricting maps and the questions surrounding that in terms of do we believe in gerrymandering? Do we not believe in gerrymandering and how all of that. Then there was the election. Virginia said, we shall have ten congressional districts that are Democrat and one congressional district that is Republican.
J. Aughenbaugh: Correct.
N. Rodgers: Whether people like that or not, tara, that's the election. It was not it was about four points apart. Three to four points?
J. Aughenbaugh: It was 51.5 to 48.5 in favor of amending the Virginia Constitution to allow for on a temporary basis, because that's what the ballot question said, temporary basis, redistricting.
N. Rodgers: Three points, three point which is in our current political situation, pretty strong. Because our elections sometimes are quite close.
J. Aughenbaugh: I mean, it's pretty much where Virginia is currently in regards to the state leans Democratic. It's probably somewhere around 50.5, 50.6 to 49.5, 49.4. But it's has leaned pretty consistently to the Democratic Party in the last roughly a dozen years. That was a vote to amend the Virginia Constitution, which would on a temporary basis, get rid of the bipartisan Redistricting Commission, which was the previous Virginia Constitutional Amendment. Then a week ago from the day we are recording, Friday, May 8, by a vote of four to three, the Virginia Supreme Court declared that ballot initiative, which would have had the effect of amending the Virginia Constitution. Violated the Virginia Constitution?
N. Rodgers: As Virginia Supreme Court. For those who don't know, quick thing here. I'm so sorry. Excuse me. The Virginia Supreme Court for Virginia acts like the US Supreme Court acts for the United States. It is a final appeals court.
J. Aughenbaugh: Yes.
N. Rodgers: It looks at the Virginia Constitution and it says, yea or nay for whatever thing is, whether it's constitutional for the Virginia Constitution?
J. Aughenbaugh: Yes.
N. Rodgers: They were like, no. But here's the thing, and I know you mentioned it the last time, but I do want to bring it up. There was already a judge that tried to say that that election was not was not constitutional, and the Virginia Supreme Court said, let it go forward while we discuss it.
J. Aughenbaugh: We deliberate.
N. Rodgers: Yeah. While we deliberate, because it may even be moot. If it had been a no vote, they would have said, well, then it doesn't matter. We don't need to rule because it is no longer.
J. Aughenbaugh: Actually, the Virginia Supreme Court agreed to hold off its decision at the request of the Democratic Party who wanted to change to the Virginia Constitution.
N. Rodgers: Be careful what you ask for. As the rule always stands in Aughie and my world, be careful what you ask for.
J. Aughenbaugh: For our listeners who don't live in the Commonwealth of Virginia, or for that matter, even if you live in the Commonwealth of Virginia, to amend the Virginia Constitution, it actually requires three steps. The first step, the state legislature has to approve a change to the Virginia constitution. Then there has to be an election. Then after the election, the Virginia voters get to vote on whether or not to change the constitution. It is a very laborious process. As a number of constitutional scholars have pointed out, Virginia's state Constitution amendment process is designed to make it really difficult to amend the Virginia Constitution.
N. Rodgers: Wait. So there's a proposed and then there's an election of what?
J. Aughenbaugh: Just a general election within the state. Yes. All right.
N. Rodgers: Then a specific for the amendment.
J. Aughenbaugh: Basically, it typically takes two to two to three years. The idea is, if we're going to make a permanent change to the Virginia Constitution, then we don't want this just to be a temporary kerfuffle. This can't be just a spur of the moment. The masses are mobilized.
N. Rodgers: In the streets. We're going to do a thing and change the constitution. Then six months later, the masses rise again and we do something else. Virginia has been around forever and is a deliberative state in many ways.
J. Aughenbaugh: Last fall, the state legislature was already in session for other legislative matters and they decided to use that session to go ahead and approve a change to the Virginia Constitution which would get rid of the bipartisan Redistricting Commission, and replace it with the state legislature redrawing the congressional districts here in Virginia. This was in response to President Trump, as we discussed in our previous podcast episode, putting pressure on a number of states generally controlled by the Republican Party to do mid decade redistricting to add safe Republican seats within those states. This is known as gerrymandering. They passed that. Then you had last fall's statewide elections where we elected a brand new governor, lieutenant governor, attorney general, etc. That was step two. Then step three was the election that took place.
N. Rodgers: Special election.
J. Aughenbaugh: Special election to approve the change to the Virginia Constitution. According to a narrow majority of the Virginia Supreme Court, last fall's election, which would have been step two was unconstitutional. Why? Because Virginia had begun early voting for last November's statewide elections before the General Assembly, the state legislature approved this constitutional amendment.
N. Rodgers: The election itself was not unconstitutional, but it didn't fall into the three step change of the Constitution process.
J. Aughenbaugh: That's right.
N. Rodgers: Right. It's fine to elect the governor. But if you had to have done Step one first in order for that to count towards being Step two, as opposed to that's just an election and has nothing to do with the three step process.
J. Aughenbaugh: As the majority opinion written by Virginia Supreme Court Justice Kelsey points out, a whole bunch of Virginia had already begun to vote in the November election without knowing that their elected officials were approving an amendment to the Virginia's Constitution for redrawing of congressional maps.
N. Rodgers: Because that might have changed some of the closer elections in the state.
J. Aughenbaugh: That's right.
N. Rodgers: Because we had some pretty tight races.
J. Aughenbaugh: Yes.
N. Rodgers: In our last election last time.
J. Aughenbaugh: I really liked his conclusion. I'm going to read it verbatim. While the Commonwealth, which is how Virginia's state government is referred to, we are Commonwealth, much like Massachusetts, Pennsylvania, and Kentucky. While the Commonwealth is free by its lights to do the right thing for the right reason, the rule of law requires that it be done the right way. Under the Constitution of Virginia, the right way,'' necessitates compliance with the requirements of a deliberately lengthy, precise, and balanced procedure. Strict compliance with these mandatory provisions is required in order that all proposed constitutional amendments shall receive the deliberative consideration and careful scrutiny that they deserve.
N. Rodgers: I want to ask you a question about that, Aughie. Does that mean that what he's saying is, you can go back and do this. If you do it right, you can go back and do it over?
J. Aughenbaugh: Yes.
N. Rodgers: And get the thing you want.
J. Aughenbaugh: Yes.
N. Rodgers: They're not saying you can't ever do this. They're saying you didn't do it the right way, and you got to go back and do it the right way, is that correct?
J. Aughenbaugh: That is correct. But this would not probably go into effect until at the earliest. If they did it the right way, it probably would not go into effect until 2028, at the earliest, more than likely 2030, at that point, what happens in 2030 across the country, Nia? Census. Which means.
N. Rodgers: Sorry, elections.
J. Aughenbaugh: No, censuses .
N. Rodgers: Bears running wild.
J. Aughenbaugh: Well, there was a bear running wild this week in Virginia.
N. Rodgers: No, you got to love teenage bears. I just running around the highways.
J. Aughenbaugh: We are living in strange times, but nevertheless, see your earlier comments.
N. Rodgers: Then it would be the normal time that you redistrict because that's what happens right after the census. The normal time for redistricting is the year after the census.
J. Aughenbaugh: Yes. As the majority opinion points out, the state had argued very strongly against judicial review of the ballot initiative before a vote was held because if the initiative failed, as you pointed out earlier, Nia, if it failed, there would not be any need for judicial review at all. All right. The second vote would have if it had gone negatively.
N. Rodgers: Would ended it. We would have ended question.
J. Aughenbaugh: But as the majority pointed out, you can't tell us to hold off on doing judicial review to see the result of the vote. Then when you get the vote result that you want, then turn around and say, well, you can't do judicial review now. No, we held off at your request, in case there was a no vote.
N. Rodgers: People like Senator Caine who are crabby about the timing. That's your own fault. You own fault for saying, Wait, why don't you guys wait to decide until we know what the election results are?
J. Aughenbaugh: Yes.
N. Rodgers: Which also feels a little bit, i mean, I love, everybody's stepdad, but it does feel like a little bit like putting your thumb on the scales. Sorry. Tim Caine is known in Virginia as the state's stepdad like he is.
N. Rodgers: He is a nice guy.
J. Aughenbaugh: Yes.
N. Rodgers: I've met him. He's very nice. He's very pleasant. But this is another one of those cases where I didn't like the result and so I'm going to attack the process. But if the result had gone my way, I would have been fine with the process. It's one of those things that we try to talk about guarding against on this podcast is that I really like the Supreme Court when they rule my way, but when they rule against me, they're evil and terrible. Then we mock Donald Trump for saying the same thing publicly. But he's saying the same thing that a lot of people say. He just has a louder platform to say it from. You either appreciate the way they do their work or you don't. It can't be based on whether you like the outcome or not.
J. Aughenbaugh: Judicial review is not conditional. It's not situational, and another metaphor here is heads I win tails you lose. You can't go ahead and say, no, no, no, we don't need judicial review because the voters could vote it down. Well, they didn't vote it down so, oh, no, no, no, we don't want judicial review because the voters have spoken. That's not how this works.
N. Rodgers: It's a little two faced. Was there a dissent? Are there always dissents when there's a decision that's 4-3?
J. Aughenbaugh: Typically yeah. State Supreme Courts are like the US Supreme Court, when there is a divide.
N. Rodgers: People who didn't win are crabby and they want to write about it. Here's what my colleagues got wrong.
J. Aughenbaugh: The main dissent was written by the Chief Justice of the Virginia Supreme Court, Chief Justice Powell. He said that the Court has long recognized the constitution is certain and fixed, that it contains the permanent will of the people. He said, in particular, what the majority got wrong was its definition of election because the majority basically said that last fall's election actually began before election day because that's when people who wanted to vote early actually started to vote. He said, that's not how Virginia and federal law define an election. An election is the actual election day. I want you to remember that because we're now going to pivot, listeners, to Virginia appealing the Virginia Supreme Court's decision to the US Supreme Court. Now, if a losing party in a State Supreme Court is thinking that it wants to appeal to the US Supreme Court, they can only do so on one of two grounds. One, the State Court decision violates federal law or the State Court decision violates the US Constitution.
N. Rodgers: They can't say they got our constitution wrong because that would make them not the Virginia Supreme Court. It would make them the Virginia middling Court until the US Supreme Court decides whether the Virginia middling Court got it right or not. The Supreme means they get to decide the constitutionality of the Virginia part of it.
J. Aughenbaugh: That's right.
N. Rodgers: The Virginia Constitution. That makes sense. Because otherwise, things would be fought to the Supreme Court all the time.
J. Aughenbaugh: Listeners, this is an example of federalism. The US Supreme Court has held since early on in our country's history, that when a State Court decides a case based on state law or a state constitution, they are the experts on the meaning of state law and state constitutions. Therefore, their decisions deserve, if you will, sovereign, if you will, consideration. The US Supreme Court's not an expert on Virginia law. Who are the experts?
N. Rodgers: The Virginia Supreme Court. That makes sense to me because that seems like a good check and balance against the US Supremes just deciding other people's constitutions.
J. Aughenbaugh: Yes.
N. Rodgers: You would not want them to do.
J. Aughenbaugh: If federalism means anything, it means that in the United States, there are two levels of sovereign governments, the federal level and states.
N. Rodgers: State's right, baby.
J. Aughenbaugh: That's right. Each deserve, if you will, recognition and protection. Over last weekend, and I think he submitted it on Monday of this week, Nia, the Attorney General for Virginia, Attorney General Jones announced and he filed an appeal with the US Supreme Court. He basically makes two arguments. Interestingly enough, Nia. Again, I love politics in America today, so hypocritical. Both of these arguments are arguments made by Republican states. One, he goes ahead and argues that per the independent state legislature theory, only state legislatures have authority in the US Constitution to decide election matters within a state. This was an argument made by Nia's home state of North Carolina in the Moore case in 2023. Which interestingly enough was also a case where North Carolina legislature wanted to redistrict North Carolina in such a gerrymandered way that the Democrats, I think, might have only had two seats. The North Carolina Supreme Court said you can't do that. The case goes the whole way to the US Supreme Court and the Supreme Court by a vote of 6-3, said, no, state legislatures can be checked by State Courts per state constitutions. They don't get to act independently. They can be checked.
N. Rodgers: If you want more information on the independent state legislature doctrine, Season 9, Episode 15 of this podcast. This came out in 2022, goes into much more in depth of these concepts.
J. Aughenbaugh: The second argument made by Attorney General Jones is an argument currently being made in a case in the state of Mississippi. He adopts the argument made by the Republican National Committee and the Republican Party of Mississippi, which is the meaning of election is the day that the election occurs.
N. Rodgers: Or is it the whole process?
J. Aughenbaugh: Process.
N. Rodgers: Is it from early voting, mail in voting all the way through to election day.
J. Aughenbaugh: Yes. The counting election.
N. Rodgers: To the counting of votes.
J. Aughenbaugh: Because in the Mississippi case, what's at issue is the fact that Mississippi's voter registrar has adopted a procedure of counting votes that are received after election day as long as they are postmarked on election day.
N. Rodgers: I think several states that do mail in voting do that, which is why you have to wait quite a while in order for the mail, especially given the slowness of the current mail system.
J. Aughenbaugh: That's right.
N. Rodgers: That could be a week before you even get all the ballots in.
J. Aughenbaugh: The Supreme Court's already heard oral arguments about this.
N. Rodgers: That'll be here for the summer of SCOTUS. We'll find out what they say about that.
J. Aughenbaugh: What is the meaning of the word election? Does it cover just the day?
N. Rodgers: Election, I do not think this word means what you think it means.
J. Aughenbaugh: Nice princess broad reference. But nevertheless, I found it just really odd.
N. Rodgers: Oh, my gosh.
J. Aughenbaugh: That attorney general [inaudible] has basically taken two Republican arguments.
N. Rodgers: Republican arguments or arguments that have been recently used by the Republican Party. There's no such thing as a Republican argument. I shouldn't have said it that way.
J. Aughenbaugh: An argument in and of itself is not your roof.
N. Rodgers: Republican or Democrat. But it is interesting that he looked around and went, hey, we could use that argument. I have a question for you about this before, and I know there's a little bit more detail that you want to share with folks. But I want to ask you, do you think AGs even when they know they're going to lose, because it's likely neither of those arguments is going to fly with the Supreme Court.
J. Aughenbaugh: We'll get to why they won't fly in just a moment.
N. Rodgers: But do you think that they feel like, well, I work for the governor, the governor has a stand or? Sometimes I feel some of those are half hearted. They're like, I feel like I'm obligated.
J. Aughenbaugh: It's performative. It's symbolic politics that's particularly the case in a state like Virginia where the attorney general does not work for the governor.
N. Rodgers: The attorney general can be separately elected.
J. Aughenbaugh: He is separately elected.
N. Rodgers: Happens to be Democrat this time, along with the governor, but it doesn't have to be. That's true.
J. Aughenbaugh: But Attorney General Jones if he wants to run for re election and unlike the governor, he's not term limited, he's got to be able to go ahead and show to his base, I fought the good fight. Now, his arguments in saying that the Virginia Supreme Court should have not reviewed the amendment process before the second vote took place, came back to bite him nevertheless. The reason why I don't think the US Supreme Court is going to stay or even overturn the Virginia Supreme Court is that the Virginia Supreme Court's decision was rooted explicitly in the Virginia Constitution.
N. Rodgers: Our Constitution says [inaudible]. The feds are not going to say, I don't think you can read your constitution properly.
J. Aughenbaugh: Correct.
N. Rodgers: Then mayhem ensues because now you got 50 states Supreme Courts saying, I'm sorry, what did you just say? Did you say you don't think we can read our own Constitution? Oh, I don't believe that's accurate. That would be a huge loss of respect for the institution.
J. Aughenbaugh: Think about what this does to federalism. Think what this does to sovereign authority of states to govern the way their constitution say they have to govern.
N. Rodgers: That would be the end of the US Supreme Court, really. Would be the beginning of the end.
J. Aughenbaugh: If you want to talk about the US Supreme Court's legitimacy taking more than likely a fatal blow to its legitimacy, the Supreme Court wades into this dispute right now. I don't even think the liberals on the Supreme Court would.
N. Rodgers: Wade into that?
J. Aughenbaugh: No. Because they understand that today it's Virginia, tomorrow it's New York or California.
N. Rodgers: The day after that, it's Missouri and the day after that, it's in Alaska. It's just on and on. We will continue to have the current map system, which is a 6-5 Dem, Republican, which does more or less represent or more or less mathematically represent the population of Virginia. It's a little bit Democratic leaning.
J. Aughenbaugh: For our listeners who don't live in Virginia, the way the population of the state is basically migrated, moved, and shifted, Virginia basically now has easily five or six pockets that lean or are controlled by the Democratic Party. You're talking about Northern Virginia. You're talking about Central Virginia and Richmond.
J. Aughenbaugh: Even the Hampton Roads Virginia Beach area now, there are some pockets where Republicans do really well, but overall leans Democratic. Where the Republican Party still maintains quite a bit of control. South Side, Southwest and the Appalachian Mountain region. Basically, Interstate 81 West, is controlled by the Republican Party.
N. Rodgers: Roanoke and Danville and the Northern area. I know, by the way, that those two things are the top and bottom of the state, but still that's out in the Western rural. We've increasingly become is rural versus urban. Our politics are much less about county to county so much as they are rural counties versus more urban cities and city centers.
J. Aughenbaugh: Virginia in many ways, is much like the map of the United States. The heavily populated urban areas tend to vote for the Democratic Party, but in the rural areas of Virginia, they tend to vote for the Republicans.
N. Rodgers: It's the same way with the Commonwealth of Pennsylvania.
J. Aughenbaugh: Sure. Because we have Pittsburgh and Philadelphia heavily Democratic. But the central part of the state controlled by Republican Party. Yes, its rural.
N. Rodgers: That's a not uncommon phenomenon.
J. Aughenbaugh: There's a couple other things I want to mention before we wrap up. One.
N. Rodgers: Can I mention something that sets my hair on fire? You guys should know that's very close to my head because my hair is very short. The idea that you would replace the entire.
J. Aughenbaugh: Virginia Supreme Court.
N. Rodgers: All seven of them is bonkers. I was reading and I called Aughie, and fortunately for Aughie, he didn't answer. He has a life outside of my ranting commentaries. I find that hard to believe, but there we go.
J. Aughenbaugh: I know it is too far on my part.
N. Rodgers: That you go out and have a life that doesn't listen to me yelling about things. But when I saw the proposal that you lower the age of mandatory retirement from 73 or five or whatever it is now to 54 so that you can clear the decks of all the justices and then appoint new justices, I was like, are you insane? That is so morally bankrupt, I don't know how that comes out of somebody's mouth. You know what I mean? Like that, what cockamamie horrible idea is that?
J. Aughenbaugh: Listeners what Nia is referring to is in a conference call that Virginia Democrats had with the Democratic minority leader in the House of Representatives last weekend, Hakeem Jeffries. Apparently, one of the suggestions that was made during the conference call, and it's been widely reported as accurate. Was that somebody from the Virginia side of the conference call went ahead and said, well, we could change the retirement age of all the Virginia judges and lower to 54 and if we did that, then all current seven Virginia Supreme Court judges would have to immediately retire. Then Governor Spanberger.
N. Rodgers: A Democrat.
J. Aughenbaugh: Well, she won't get to appoint them because Virginia, the state legislature appoints them.
N. Rodgers: Right now it's controlled by Democrats.
J. Aughenbaugh: By comfortable margins.
N. Rodgers: In fairness to Governor Spanberger, she gave that idea such hard side eye. I'm sure that Hakeem Jeffries felt it in DC, even though it wasn't his idea. She was like you want to do what? Are you insane? Because again, we go back to the idea of if you break this glass in order to get the hammer, in order to do whatever it is that you're going to do with the hammer, when you put the hammer down because it's no longer your hammer, meaning Republicans now run the state, they will do the exact same thing. They will say well, we've lowered it to 52, and we're going to get rid of everybody that's on there. It was so bonkers an idea. Whoever offered it should be embarrassed that they said those words out loud where other people could hear them. It's not how you do democracy, friend, that's not how you do democracy. I don't like your ruling, so I'm just going to wipe out the Supreme Court and start over. Have you met a constitution with the balances and the checks and the whole, what are you doing here?
J. Aughenbaugh: The idea of judges being independent is that they're like umpires and sporting events, so they can go ahead and make sure that everybody plays by the same rules.
N. Rodgers: Umpires all have favorite teams.
J. Aughenbaugh: Sure.
N. Rodgers: But that doesn't mean that they are unprofessional when they do the job.
J. Aughenbaugh: You don't get rid of the umpires because you don't like the rules. [LAUGHTER] As somebody who's been playing 14 events since I was 48.
N. Rodgers: I had been kidding, so I'm going to get rid of all the ups. It was what?
J. Aughenbaugh: What?
N. Rodgers: I don't think that's how that works.
J. Aughenbaugh: I don't like how the umpire is calling fouls, so let's just go ahead and just get rid of all the refs. No. Maybe some of the fouls could be changed, but you don't get rid of the refs for enforcing the Rule Book.
N. Rodgers: As a perfect example, thank you for a sports metaphor. I can't believe I'm about to wade in on a sports metaphor because I'm the least sporty person we all know. Maybe what you do is teach your players not to foul as much. Quit throwing elbows, quit going under the net and trying to kick people in the groin, quit doing that stuff, and we won't get as many fouls. The unforced errors in politics these days.
J. Aughenbaugh: It's just phenomenal.
N. Rodgers: It's amazing. I know eighth graders who could do it better. I know an eighth grader who could do it better, her name is Mark. She could do a significantly better job than three quarters of the people who are doing this because she has an intense moral compass and a lot of empathy, like hello.
J. Aughenbaugh: The other thing we want to do on this podcast before we conclude this episode is to give a huge shout out to the Supreme Court judge of Virginia who wrote the majority opinion, his name is Judge Kelsey.
N. Rodgers: Arthur Kelsey.
J. Aughenbaugh: Arthur. Yes. Arthur Kelsey is up for reappointment as a judge on the Virginia Supreme Court next year and guess who gets to decide his fate?
N. Rodgers: The National Assembly.
J. Aughenbaugh: Yes, Virginia Democratic Control.
N. Rodgers: Good for him, but he looked him in the eye and said, "No, you can't do this and you won't reappoint me."
J. Aughenbaugh: Yes, even if it means to reappoint me, I'm still going to go ahead and call it as I see it.
N. Rodgers: Although if they don't reappoint him, that's retaliatory and I will have words to say about that probably because that's not okay. Weren't most of these people went by the Democrats, most of the Supreme because, generally speaking, we've had several Democratic governors in my time living in Virginia.
J. Aughenbaugh: In the state legislature has had at least one house controlled by the Democratic Party.
N. Rodgers: For quite a while.
J. Aughenbaugh: Most of these judges were appointed at the suggestion of Democratic governors, and at least one house of the state legislature was controlled by the Democrat. These are judges with well established bonafides of acceptability in the Democratic Party.
N. Rodgers: Bridge too far. It reminds me a little of the moment that Donald Trump was watching the immigration, and then he got up and he left and he went outside and here like, they're all stupid. But you appointed two of them.
J. Aughenbaugh: He appointed three of them [inaudible]
N. Rodgers: Three of them.
J. Aughenbaugh: Yes.
N. Rodgers: A third of this court, you thought were fine when they went your way. But when they didn't go your way, now you're all crabby. The hypocrisy is thick.
J. Aughenbaugh: When President Eisenhower, after he served two terms in office was asked, what were the biggest mistakes you made as president? He said, "I made two, and they both sit on the US Supreme Court." I'm like but you picked them.
N. Rodgers: If you didn't vet them, that's a problem, not a them problem.
J. Aughenbaugh: Problem. That's the thing when you go ahead and pick judges.
N. Rodgers: Once you give them a lifetime appointment, they're like, wait, I'm not beholden to anybody.
J. Aughenbaugh: Or in the case of Virginia's judges, they serve for a period of time, and then they're up for reappointment. But again, while they have their term, they can do whatever they want. That's the idea of the independent judiciary.
N. Rodgers: That's the whole point of the third article, they served 12 years. Staggered, I think, every couple of years, somebody because you want to keep continuity on the court. Forgive me but the other thing that we talk about on a fairly regular basis is doing something with the Supreme Court like term limits or term renewals or something along the lines of what the Virginia court does, 12 years staggered terms, we've talked about that how to do that, maybe with the federal courts so that you get a little bit of turnover so you don't have the same court for 18,000 years. But then when you say, or we could just lower the age and wipe them all out, you're wait, dig, win. Point totally missed, completely missed. You're not even the same geographic area as the point. The point is so far.
J. Aughenbaugh: You're completely undercutting why you go ahead and argue that we have this review process in place.
N. Rodgers: That we have a plan.
J. Aughenbaugh: That continuity has value.
N. Rodgers: The justices should be independent. They should be independent right up until they do an independent thing that you don't like, and then they should be on your side.
J. Aughenbaugh: Exactly.
N. Rodgers: I see how this works.
J. Aughenbaugh: Continuity has value until it no longer has value and then we're just going to scrap the whole system. Like what? I'm back a couple of clicks in trying to understand the logic of your argument.
N. Rodgers: Will his argument hold? It won't hold at the Supreme's. Well, if you already said the AGs argument will not hold at the Supreme's probably. Well, I know that the NAACP, I think they're trying to file some lawsuit at the Supreme Court. Would an outside are they going to still say, no, this was based on the Virginia Constitution. We're not interested in any argument being made.
J. Aughenbaugh: Unless the NAACP can make a persuasive argument that the Virginia Supreme Court's ruling touches upon federal law or the federal constitution, I don't see the US Supreme Court taking this case. Again, those are the two, if you will, jurisdictional threshold questions that the justices always ask when a state court decision is being appealed to the federal courts. Does the case deal with federal law or the federal constitution? If it doesn't we can't take the case.
N. Rodgers: If they come in with an argument like it deprived voters of their voting rights, they might be able to get it heard. But that's the argument they'd have to make would be Virginia voters were stripped of their right to vote and that's unconstitutional.
J. Aughenbaugh: But if they bring in the Voting Rights Act, as we will be discussing in an upcoming podcast episode concerning the Louisiana versus Callais case, the current Supreme Court isn't really big fan of the Voting Rights Act that was passed by the United States Congress in 1965.
N. Rodgers: They've dismantled a fair portion of it, haven't they? It might have been a useful argument with a different court, but it probably won't be with this court. It's not likely that this is going to get overturned.
J. Aughenbaugh: It's not just my view as a constitutional law scholar. Pretty much every constitutional law scholar that I have read has been like, we know why people are challenging the Virginia Supreme Court decision, and they got to do it for political appearance. But the US Supreme Court generally, historically, won't take this case, and the current US Supreme Court in particular, won't take this case. I don't think I'm too far out on a limb by saying, I would be really surprised, Nia, if the US Supreme Court said, something we want to take a look at what the Virginia Supreme Court did. That would be a huge shock, Nia.
N. Rodgers: If that shock comes about, we will have another episode on this. But if you don't hear from us again, it's probably because the Supreme said no we're not interested. You all talk amongst yourselves.
J. Aughenbaugh: We have other fish to fry. We have other lives to go ahead and upset and overturn.
N. Rodgers: Exactly.
J. Aughenbaugh: Thanks Nia.
N. Rodgers: Oh my. Thank you, Aughie.
You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.