Virginia lawmakers made headlines last week by refusing to put a prosecutor Tracy Thorne-Begland on the bench of the Richmond General District Court. Some say this was a case of discrimination because Thorne-Begland is gay, and others point to intensive lobbying by a conservative Christian group.
It's rare for judicial nominees to be rejected by state lawmakers. By the time their names come to a vote, these candidates have been thoroughly vetted by bar associations and legislative committees. That's why some legislators were surprised when, in the wee hours of a special session last week, Tracy Thorne-Begland failed to get enough votes to be confirmed.
Thorne-Begland is an assistant commonwealth's attorney in Richmond, and his boss, Michael Herring, quickly organized a news conference to protest the vote.
"I've known Tracy for years. He's a good man. He's a good father. He's a good lawyer," Herring said. "He was a good Navy pilot, and he would have been an outstanding judge, and I, for the life of me, can't understand why folks in the General Assembly voted against his nomination."
Republican Del. Bob Marshall, who opposed the appointment, told a CNN anchor last week after that he opposed the appointment because Thorne-Begland had lied about being gay when he joined the Navy.
"There was a specific question, 'are you a homosexual.' He had to say no. He took an oath of office which he had to defy," Marshall said.
When pressed by the anchor, who compared the repeal of Don't Ask, Don't Tell to the changing times in the civil rights movement, Marshall argued that the situation is different.
"Dr. Martin Luther King and Rosa Parks never took an oath of office that they broke," Marshall said. "Sodomy is not a civil right. It's not the same as the civil rights movement."
Del. David Toscano, a Democrat from Albemarle County, saw something else at work in the politics of Thorne-Begland's nomination, and it happened quickly, he says.
"So far as I know, there was absolutely no opposition to him whatsoever," Toscano said. "Then, all of a sudden, before this gets ready for a vote, the Virginia Family Foundation sends around a letter that suggests that he ought not to be appointed to the bench."
The Virginia Family Foundation, a Christian group that encourages faith-based values in public policy, had concerns about Thorne-Begland's stated views on gay marriage and the role of judges in interpreting the Constitution, according to VFF Vice President Chris Friend. So the foundation emailed its members and encouraged them to contact their representatives.
"The bench doesn't have any room for a personal agenda. There was a statement in particular that was made in 2004 to Richmond Magazine regarding a lack of action by the judiciary, and that really made us wonder, frankly, what he would use the judiciary to do," Friend said.
Commonwealth's Attorney Michael Herring scoffed at that notion. If confirmed, most of Thorne-Begland's cases would involve traffic violations, misdemeanors and contract disputes.
The Virginia Family Foundation issues a scorecard on state lawmakers, based on how they vote on certain issues. A list of delegates who received grades of 90-100 percent is almost identical to the list of those who voted against Thorne-Begland, abstained or did not vote. Conversely, lawmakers who got grades of less than 50% were likely to support the nominee.
The Family Foundation has 100,000 names in its database, plus 15,000 churches, and the group is very active at election time.
"You know, in 2009, we distributed over a million voter guides," Friend said.
Thorne-Begland, who lives with his partner and two young children in Richmond, hasn't said whether he'd like to be considered again, but some Democrats, including Toscano, hope he will.
"Prominent Republicans and Democrats as well as the governor should step forth and say, 'look, this was a mistake,'" Toscano said. "We need to revisit this and put this person on the bench."
Gov. Bob McDonnell has said sexual orientation should be irrelevant in judicial appointments.