Will the Law Prevail? AGs as Celebrities and Public Servants

 

Ken Cuccinelli, who served as deputy secretary of the US Department of Homeland Security after his term as Virginia’s Attorney General (2010-2014), was perhaps a prototypical Tea Party Republican politician; but his term in office did not rock the status quo. A practicing patent attorney, he came from a golden age of law practice, when the American Bar Association was supreme. Opinions differed between liberals and conservatives, but the predominant trend was to empower the people through choice and autonomy; even if it varied from scientific research and planning favored in the immediate postwar era.

In the role of Attorney General, Cuccinelli’s work was informed by strict textualism as a servant of the state, rather than a judicial philosophy informed by groups such as the Federalist Society. As Attorney General, Ken Cuccinelli deferred to the legislature to repeal the one-handgun-a-month limit. This was a bipartisan effort: federal background checks instituted in the late 1990’s had reduced the importance of this purchase limit.

The status quo had definitely changed when Cuccinelli’s successor, Mark Herring (D) refused to defend Virginias’s traditional marriage law in the lead-up to Obergefell vs Hodges (2015); this deference to the federal courts was viewed as unprecedented in Virginia’s history. In retrospect, Herring’s choice has been seen as a decisive, if polarizing moment. At the time, defense of state laws and practices in the Federal Courts was widely seen as key function of the Attorney General’s office: “my Virginia, right or wrong”. Last year, former Governor Ralph Northam (D) never clarified why he endorsed incumbent Attorney General Mark Herring’s Democratic Primary opponent, leaving Virginians to guess the reason why: was it his judicial activism? Was he not progressive enough?

As former Attorney General Mark Herring was on his way out, he left his successor Jason Miyares (R) a suit against the Town of Windsor for racially-discriminatory policing practices. This again was a first; as in the past a gentlemen’s agreement would have been achieved between local government and the state, well before the courts would become involved. 

Bipartisan consensus is harder to achieve today, and the much-feared swing-state pendulum of diametrically opposite policies had arrived in Virginia. For a short time in 2020 after universal background checks for gun purchases became law again in Virginia (under pain of felony offense), I considered opening an online clearinghouse to handle these transfers; I’m glad I didn’t, since I would’ve gone out of business. Citing their own interpretations of the Second Amendment, the vast majority of rural and suburban Commonwealths’ Attorneys (county DA’s) decided not to prosecute private transactions done in accordance with prior law.

Newly-inaugurated Attorney General Jason Miyares promised to take politics out of the office. Even if he avoids going on stage in the national Republican Party spotlight, his judicial upbringing will guide his work. Born in 1976, the Federalist Society was active on Virginia law school campuses when he arrived at the College of William and Mary. This organization is now seen as an alternative to the American Bar Association, which critics claim to have become too liberal (i.e. defense-friendly) on criminal justice issues.

As the alt-right has taken to embrace chaotic, disorderly forms of personal liberty; he stuck his stake in the position of law-and-order. To him, freedom and support of law enforcement are complementary, not contrary. During his campaign, Miyares spoke from the steps of specific courthouses where criminal assailants were given light sentences. Son of a Cuban immigrant, he contrasted the terror of Cuba’s secret police knocking at the door, with America’s love of neighborhood spirit.  

He wants to be your local prosecutor, too; and has asked the legislature for joint jurisdiction with locally-elected Commonwealths’ Attorneys. If they won’t prosecute, Jason Miyares will. The changes could take effect as soon as July. In Fairfax County, the most populous jurisdiction in Virginia, and located just outside of DC, Steve Descano was elected as a progressive Commonwealth’s Attorney in the anti-Trump wave of 2019.  His predecessor left the Democratic Party in protest. Descano has proven himself to be a hothead with a temper, easy enough to be triggered.  While there are other “woke” prosecutors in the inner suburbs, the joint jurisdiction bill was about Descano, who seems easy enough to topple in what will be a raucous Fairfax County 2023 Democratic Primary.

How does the Attorney General put politics and individual philosophy back into the box it came from? Especially when popular elections are involved, these elements become deeply engrained in the interpretation and enforcement of laws. Two suggestions emerge from my experience with the engineering profession: Reinstate the fraternity-sorority of state bar membership by emphasizing core principles of “equality and justice for all”. Matters affecting governance within a state must be handled by local stakeholders; they cannot be outsourced overseas or to BigLaw; to do otherwise is to lose nuance, continuity, and collaboration. In this way, duty to the profession of law would supersede the temporal incentives of playing politics from the Attorney General’s office.