Judge Rossie Alston, who currently serves on the Virginia Court of Appeals, has had his share of messy confirmation battles.  Three years ago, his confirmation to the Virginia Supreme Court was derailed by a power struggle between the Virginia legislature and Governor Terry McAuliffe.  This time around, his nomination to the U.S. District Court for the Eastern District of Virginia is likely to yield more success.

Background

Rossie David Alston Jr. was born in Washington D.C. on May 31, 1957.  He attended Averett College (now University) in Southern Virginia, graduating cum laude in 1979 and then received a J.D. from North Carolina Central University School of Law in 1982.[1]

After graduation, Alston worked as a Staff Attorney at the National Labor Relations Board and then joined the National Right to Work Legal Defense Foundation, where he worked for five years as a Staff Attorney.[2]  In 1992, Alston joined Smith, Hudson, Hammond and Alston in Manassas as a Name Partner.[3]

In 1998, Alston was appointed to the Juvenile & Domestic Relations Court in Prince William County.[4]  Three years later, he was selected to be a Circuit Court judge in Prince William County.[5]

In 2005, Alston applied for a vacancy on the U.S. District Court for the Eastern District of Virginia, but was not selected as the top candidate by the State Bar (who chose magistrate judge Liam O’Grady and litigator Anthony Trenga).[6]  Alston was still one of five candidates recommended for the seat by Virginia’s Republican Senators (O’Grady was ultimately chosen).[7]

In 2009, Alston was selected by the Virginia General Assembly to join the Virginia Court of Appeals, replacing Judge Jean Harrison Clements.[8]

In 2015, Alston was part of a tangle over a Supreme Court appointment between Gov. Terry McAuliffe and General Assembly leaders.  McAuliffe appointed Judge Jane Roush, a well-respected Fairfax County Judge, to the Virginia Supreme Court upon the recommendation of Del. Dave Albo, a Republican.[9]  However, Republican leaders in the Assembly protested the nomination, claiming that they were not adequately consulted, and instead announced plans to elevate Alston to the seat.[10]  After the Virginia House ignored Roush’s nomination and elected Alston, the Republican-controlled Senate rejected his nomination on a 20-20 tie after Republican Sen. John Watkins voted with all Democrats against Alston.[11]

Republicans tried to move Alston again after Watkins’ retirement, but Sen. Glen Sturtevant, who replaced Watkins, indicated his opposition to Alston.[12]  After two African American Democrats both reneged on deals to support Alston, Republicans dropped plans to elevate him, and his colleague, Judge Steven McCullough, was elevated instead.

Alston continues to serve on the Virginia Court of Appeals.

History of the Seat

Alston has been nominated for a seat on the U.S. District Court for the Eastern District of Virginia.  This seat opened on September 30, 2017, when Judge Gerald Bruce Lee moved to senior status.  Virginia Senators Mark Warner and Tim Kaine, both Democrats, recommended Alston alongside federal prosecutor Patricia Giles in December 2017.[13]  Alston was nominated on June 18, 2018.[14]

Legal Experience

Alston started his legal career working as a labor attorney, first at the National Labor Relations Board and then at the National Right to Work Legal Foundation, a non-profit organization that seeks to counter union activities.  From 1989 to 1998, Alston worked in private practice, handling criminal defense, plaintiff’s side civil litigation, and domestic matters.

Some of the clients Alston represented include a woman charged with the death of a toddler scalded with hot bath water,[15] a teen who killed his stepfather to protect his mother from physical abuse,[16] and a driver convicted of reckless driving for participating in a road duel.[17]  Alston was also part of the legal team suing on behalf of the parents of a 13-month-old baby that fell through a window screen and sustained serious injuries.[18]  Alston was able to obtain a $15 million judgment, but the verdict was overturned on appeal.[19]

Jurisprudence

Alston has served as a judge in Virginia for approximately twenty years, starting as a Juvenile & Domestic Relations Judge in Prince William County in 1998, becoming a Circuit Court Judge in 2001, and being elected by the Virginia Assembly to the Court of Appeals in 2009.

Circuit Court Judge

From 2001 to 2009, Alston served as a Circuit Court Judge in Prince William County, where he presided over civil and criminal cases.[20]  On the Circuit Court, Alston developed a reputation for creative sentencing, including imposing “community service and symbolic jail time.”[21]  In one notable case, Alston presided over the trial of a community leader charged with leaving his toddler in a hot car.[22]  The jury found the father guilty and recommended 12 months in jail.[23]  However, Alston gave the father seven years of probation, ordering the father to spend his deceased daughter’s birthday in jail and donate blood on that day for the next seven years.[24]  In so ruling, Alston emphasized that the defendant “was a good man who loved his family and his church.”[25]

Court of Appeals

From 2009 onwards, Alston has served on the Virginia Court of Appeals, one level before the Virginia Supreme Court.  In his time on the court, Alston authored over 200 majority opinions, establishing a largely conservative record.  For example, Alston held, shortly after the Supreme Court legalized same-sex marriage in Obergefell, that cohabitation under Virginia law did not apply to same-sex couples, a decision that was reversed by the Virginia Supreme Court.[26]  In another case, Alston held that making an unsignaled left turn could be grounds for a valid traffic stop by a police car, even if there was no other traffic in the vicinity.[27]

Reversals

Over his twenty years on the bench, Alston’s rulings have been reversed by higher courts eleven times.[28]  Of these reversals, the most significant is in Luttrell v. Cuoco.[29]  Luttrell involved a ruling from a Fairfax judge that a man had to continue to pay alimony to his ex-wife even though his wife was now cohabiting with her female partner.[30]  Alston wrote for the Virginia Court of Appeals in holding that, under Virginia’s alimony law, cohabitation could only be between a man and a woman.[31]  The Virginia Supreme Court reversed, finding that a 1997 amendment expanded the definition of cohabitation to include same-sex couples.[32]

Interestingly, Alston has been reversed four times in cases where he ruled in favor of defendants or against law enforcement.[33]  In contrast, Alston has never had a conviction before him reversed and has only had a sentence before him reversed once.[34]

Writings or Comments

In his testimony as a nominee to the Virginia Supreme Court, Alston was asked if businesses should be permitted to turn away LGBT customers based on the business owner’s religious beliefs.[35]  Alston responded:

“There is no reason whatsoever why any person in the United States of America should be denied equal privileges that we all enjoy under the law.”[36]

Senator Don McEachin, a Virginia Democrat, interpreted Alston’s testimony as a rebuke to Virginia Republicans, who were then attempting to pass “religious liberty” laws that would permit such discrimination.[37]

Overall Assessment

While Alston’s elevation to the Virginia Supreme Court may have been entangled in politics, his path to the federal bench looks much smoother.  As Alston has already gotten the sign-off of Virginia’s Democratic senators, it is unlikely that his conservative-leaning jurisprudence would keep many Democrats from backing him.  As such, it is more a question of when, rather than if, Alston will be confirmed.

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