Remember Ken Cuccinelli?
One year after the Supreme Court struck down bans on private non-commercial sex between consenting adults in its 2003 opinion in Lawrence v. Texas, Cuccinelli was a Virginia state senator. A bipartisan group of his colleagues backed a bill that would have updated Virginia law to eliminate the state’s unconstitutional bans on oral and anal sex. Cuccinelli, however, opposed the bill, explaining that “my view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.”
Six years later, he was sworn in as Virginia’s attorney general. He spent the next four years transforming the state’s top law enforcement office into a clearinghouse for activist conservative lawsuits.
And now, his fellow Republicans in the state legislature want to put him on Virginia’s highest court.
Unlike most states and the federal government, the ultimate power to appoint judges rests with the state legislature in Virginia. This has led to an impasse in the state senate, where Republicans currently enjoy a 21–19 advantage. Gov. Terry McAuliffe (D) wants the state to appoint a former lower court judge to fill a vacancy on the state supreme court, and that judge is backed by all 19 Democratic senators plus Republican state Sen. Glen Sturtevant. The remaining 20 Republicans, meanwhile, back a different candidate. The GOP-controlled House of Delegates, however, steadfastly refuses to back McAuliffe’s pick.
Sturtevant, however, now appears open to providing the final vote needed to appoint Cuccinelli to fill the vacant seat, telling The Virginia-Pilot that “we have to fill the vacancy.”
If Cuccinelli becomes Justice Cuccinelli he would undoubtedly bring to the bench the same aggressive conservatism that he brought to the state senate and the attorney general’s office. He would also bring something else to the court that lawmakers typically do not look for in a judge.
There’s no delicate way to say this. Ken Cuccinelli is not a particularly good lawyer.
As attorney general, Cuccinelli famously challenged the Affordable Care Act. He lost. He challenged the EPA’s determination that greenhouse emissions contribute to climate change. He lost. He fought a years long battle to force a prominent climate scientist to release documents related to his research. And lost. He fought to preserve the same anti-sodomy law that he refused to fix in 2004. And lost. And he filed briefs defending the anti-gay Defense of Marriage Act. And lost.
Of course, a good advocate can still lose cases if the law is not on their side, but Cuccinelli would bring ambitious cases grounded in aggressive legal theories, and then lose these cases due to easy-to-avoid mistakes. In his challenge to Obamacare, for example, Cuccinelli refused to join another, similar lawsuit brought by many other state attorneys general. That lawsuit, of course, went all the way to the Supreme Court, nearly prevailed in its entirety, and did considerable damage to the law in the process.
Significantly, the multi-state case was not simply brought on behalf of states. The plaintiffs in that lawsuit also included a conservative membership group and individuals opposed to the law. These additional plaintiffs needed to be on the lawsuit because, even at the beginning, there were very serious doubts that states had the legal right to challenge certain provisions of Obamacare in federal court. There were far fewer doubts, however, that individuals impacted by the law could do so.
Because the lawyers behind the multi-state case anticipated the need to add individual plaintiffs to their suit and acted accordingly, their lawsuit made it to the justices. Cuccinelli’s case, by contrast, was dismissed after a court concluded that “Virginia, the sole plaintiff here, lacks standing to bring this action.”
Such mistakes, of course, are one thing when they are committed by an advocate. But if Cuccinelli made a similar error as a justice, every court in Virginia could be bound by his error.