If there is one thing Democrats and Republicans in the state legislature can agree in on, it’s that Mark R. Herring hit the ground running.
Only 13 days into his four-year term as Virginia’s 48th attorney general, the former state senator from Loudoun sparked a major controversy on the national stage when he deemed the state’s ban on same-sex marriage unconstitutional.
He wanted Virginia to “be on the right side of history,” the Democrat said in a news conference on Jan. 23, working to build a legacy at the beginning of his term.
But to Republican lawmakers, Herring’s words confirmed their worst fears that he would begin his term on a highly partisan note — and that his refusal to defend Virginia’s marriage amendment in federal court was just a first step toward further dismantling carefully crafted Republican legislation at odds with the liberal agenda promoted by Democrats.
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“His swift action to sidestep the legislative and democratic processes on the issue of marriage raises the question: What’s next?” asked Del. C. Todd Gilbert, R-Shenandoah, in an opinion column for the Richmond Times-Dispatch.
“Will Attorney General Herring defend Virginia’s right-to-work laws from challenges by out-of-state labor unions? Will he defend Virginia’s constitutional informed-consent statutes that promote a culture of life?”
In an interview in his car last week, as Herring toured Virginia to meet with local officials and hear their public safety concerns, the attorney general dismissed accusations of judicial activism.
“If it may appear to some — because it happened so early in my term — that maybe this was going to happen frequently, (but) these situations, where an attorney general comes across a case that after an independent review he concludes that a state law is unconstitutional, come along very rarely,” he said.
In his first three months in office, Herring says he has not identified other laws that he might consider constitutionally problematic.
“I’ll look at them on a case-by-case basis,” he said. “There will be a lot of cases over the term that I may disagree with as a matter of policy, but if I think the laws are adopted and constitutional, (then) I will defend them, even though I may disagree with the law.”
Had it not been for his decision on Virginia’s marriage amendment, Republicans could find a lot to like in Herring’s first three months in office, said Carl Tobias, a professor of constitutional law at the University of Richmond School of Law.
“In sum, I think that Attorney General Herring has started strongly by surrounding himself with a highly qualified, savvy staff, undertaking efforts to modernize the office, defending the state and federal constitutions, and improving public safety by meeting with local experts around the state,” Tobias said.
This month, Herring embarked on a two-week tour of Virginia to meet with law enforcement officials and leaders of more than 60 localities to learn about their public safety challenges. The tour, which wrapped Friday, has been praised by local officials from both sides of the aisle.
In February, Herring created a bipartisan three-member review panel charged with identifying efficiencies and needed reforms in the attorney general’s office.
And last week, Herring’s office filed papers with the 4th U.S. Circuit Court of Appeals in Richmond, seeking to overturn the decision of a federal judge who ruled that a state law automatically banishing death row inmates to solitary confinement violates their constitutional rights.
“As to the criticism that he might be an activist, Herring has taken positions that refute this idea,” Tobias said. “He also has not insinuated himself into disagreements between the governor and the General Assembly or aggressively pursued divisive social issues like his predecessor,” Republican Ken Cuccinelli.
On Nov. 5, Herring narrowly defeated his Republican opponent, state Sen. Mark D. Obenshain of Harrisonburg, in the closest statewide contest in modern Virginia history. Following extensive canvassing in several localities, Herring maintained a razor-thin, 165-vote lead — that’s about 0.007 percent of more than 2.2 million votes cast statewide.
When Herring’s advantage widened to 907 votes after a statewide recount, Obenshain conceded on Dec. 18 — leaving Herring little time to prepare for office.
As attorney general, Herring oversees a staff of 425, more than half of them lawyers. Most staff is based at the six-story Pocahontas Building in Richmond, while some work from smaller branch offices in Fairfax County, Roanoke, and Abingdon. Others are dispersed around the state, representing colleges and universities and the state’s child support enforcement.
Reflecting on the turbulent December days following the recount, Herring said one of his first decisions was to hire Stuart Raphael as solicitor general. Knowing that the scheduling of Bostic v. Rainey, a landmark federal case aimed at overturning Virginia’s same-sex marriage ban was imminent, Herring and his staff had no choice but to tackle what may be the most controversial issue of his term within days of his Jan. 11 inauguration.
“I knew that this was going to be something that we were going to have to deal with very promptly after coming into office,” Herring said. “I asked (Raphael) to lead up the review and the team to assess the cases, and he oversaw that. I worked with him and in analyzing the case law and the precedent, (and) I was very confident in my legal analysis and the conclusion.”
But when Herring announced in late January that he found Virginia’s marriage amendment to be in violation of the U.S. Constitution, he also decided that he would side with the plaintiffs in Bostic v. Rainey, leaving the amendment without legal defense by the state. It was a step that angered his opponents even more, prompting some calls for disbarment and impeachment.
“My responsibility is to decide on what the commonwealth’s legal position is, and then follow that,” Herring said, adding that the defense of the amendment by private attorneys and a national organization charged with arguing for traditional marriage laws would suffice.
“Knowing that the legality of the law was going to be taken up by others very zealously and confidently, it wasn’t necessary to appoint an additional law firm at taxpayers’ expense to argue the same things the other lawyers were already going to argue anyway, he said. “In addition, my predecessor had already filed a brief as well, so the court already had that to take under advisement.”
On Feb. 4, Herring sat quietly next to Raphael inside a federal courtroom in Norfolk as Judge Arenda L. Wright Allen listened to the arguments from both sides in Bostic v. Rainey.
Less than two weeks later, on the eve of Valentine’s Day, Wright Allen struck down Virginia’s marriage amendment, finding that it violates the equal protection clause of the U.S. Constitution.
While the case is not over, pending a decision by a federal appeals court and, ultimately, the U.S. Supreme Court, Herring, who in 2006 had voted for the amendment, is reveling in his new role as a key figure in the fight for marriage equality.
“There have been a lot of other federal decisions around the country that have concluded the same thing, the most recent one in Michigan,” Herring said. “And other attorneys general, who have reached the same conclusion,” he quickly added.
After the ruling in Bostic, Herring moved to the next step on his agenda — to organize 22 meetings for his public safety tour, which covered much of the state and 2,500 miles on the road — from Portsmouth, Norfolk, Virginia Beach, Danville, Bristol and Alexandria to the Tri-Cities. It was “no piece of cake,” said Herring spokesman Michael Kelly.
“I wanted to hear directly from local law enforcement about what the challenges are that they face, and if I am able to streamline operations in the attorney general’s office, look for inefficiencies and redirect some resources,” Herring said.
In the meantime, Herring eagerly awaits the findings of his bipartisan review panel.
“What I hope this group will do is come back with some recommendations on how our systems and our operations work to make them efficient, effective, transparent — everything from case and file management system, looking how outside counsel is appointed and managed to how we handle FOIA requests,” Herring said.
“I would expect within the next couple of months you’ll see some announcements from our office.”
Whether Virginians approve of their new attorney general remains to be seen. But to Herring, his new job is better than he had expected.
“When I first decided to run, I did it because I love the law, I love public policy, I love helping people. The attorney general’s office is sort of an intersection of all of those,” he said.
“I am constantly impressed with the volume of legal work that goes through the office as well as the breadth and the scope of what we do. The people are great to work with, it’s been fantastic. I absolutely love it.”
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