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.
[1] Sen. Comm. on the Judiciary, 115th Cong., Rossie D. Alston Jr.: Questionnaire for Judicial Nominees 1.
[4] Leef Smith, Judge is Sworn In for Juvenile Court; Alston Takes Over Bench of the Late Patrick Molinari, Wash. Post, Oct. 10, 1998.
[5] See Alston, supra n. 1 at 2.
[6] Alan Cooper, Ney, Wetsel Backed by 4 Bars for VA Appeals Court, Virginia Lawyers Weekly, Dec. 26, 2005.
[7] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.
[8] Alan Cooper, Alston Elected to Virginia Court of Appeals, Virginia Lawyers Weekly, Feb. 11, 2009.
[9] Peter Vieth, Va. GOP Leaders Favor Alston Over Roush for Supreme Court, Virginia Lawyers Weekly, Aug. 3, 2015.
[11] BIDS, In Vote on SC Justice, GOP’s John Watkins Unites With Democrats, Legal Monitor Worldwide, Aug. 18, 2015.
[14] Press Release, White House, President Donald J. Trump Announces Fifteenth Wave of Judicial Candidates, Fourteenth Wave of United States Attorney Nominees, and Ninth Wave of United States Marshall Nominees (June 7, 2018) (on file at https://www.whitehouse.gov/the-press-office).
[15] See Leef Smith, Autopsy: Girl’s Scalding Intentional, Wash. Post, July 11, 1998.
[16] Avis Thomas-Lister, Teen to be Tried as Juvenile in Stepfather’s Slaying; Pr. William Youth, 15, Testifies in Hearing He Feared Abuse of Mother, Siblings, Wash. Post, June 5, 1991.
[17] Leef Smith, Driver Sentenced in Road Duel That Nearly Killed Va. Child, Wash. Post, Apr. 5, 1997.
[18] Gamble v. Jeld-Wen Inc., No. 138861 (chancery), Fairfax Cnty. Circuit Court, 1997.
[19] Jeld-Win Inc. v. Gamble, 256 Va. 144 (1998).
[20] See Alston, supra n. 1 at 20.
[21] See Josh White, Father Should Go to Jail for Death, Va. Jury Says, Wash. Post, Dec. 5, 2002.
[22] Commonwealth v. Kelly, No. CR05053304-00 (Cir. Ct. Feb. 21, 2003).
[23] See White, supra n. 21.
[24] Sean O’Driscoll, Father Receives Sentence for Death of Child, Irish Times, Feb. 22, 2003.
[26] See Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016).
[27] Deborah Elkins, Court Upholds Stop for No-Signal Turn, Virginia Lawyers Weekly, Mar. 6, 2015 (citing Wilson v. Commonwealth).
[28] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017) (reversing finding that possessing a loaded gun does not constitute felony child neglect); Cole v. Commonwealth, 2017 Va. LEXIS 162 (Nov. 16, 2017) (reversing finding that Court of Appeals did not possess the authority to decide pre-trial issues in appeal); Luttrell v. Cuoco, 2016 Va. LEXIS 57 (April 28, 2016) (holding that Virginia cohabitation statute includes same-sex couples); Commonwealth v. Quarles, 283 Va. 214 (2012) (reversing holding that investigating detective had impermissibly restarted communication after defendant requested counsel); Simms v. Ruby Tuesday, Inc., 281 Va. 114 (2011) (reaffirming validity of “horseplay doctrine”); Royal Indem. Co. v. Tyco Fire Prods, LP, 281 Va. 157 (2011) (reversing ruling that statute of limitations precluded negligence claims); Commonwealth v. Andrews, 280 Va. 231 (2010) (reversing sentencing due to allowing improper victim testimony); Woods v. Mendez, 265 Va. 68 (2010) (reversing dismissal of claim for punitive damages); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc) (reversing panel decision that defendant did not exercise dominion and control over marijuana in his vehicle); Kapur v. Kapur, 2009 Va. App. LEXIS 234 (May 19, 2009) (reversing sanctions issued against husband in divorce case); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003) (reversing grant of motion to suppress).
[29] 2016 Va. LEXIS 57 (April 28, 2016).
[30] See id. See also Tom Jackman, Va. High Court Limits Spousal Support, Wash. Post, May 3, 2016.
[31] See Jackman, supra n. 31.
[33] See Commonwealth v. Wiggins, 2017 Va. Unpub. LEXIS 28 (Mar. 13, 2017); Commonwealth v. Quarles, 283 Va. 214 (2012); Ervin v. Commonwealth, 57 Va. App. 495 (2011) (en banc); Commonwealth v. Marek, 2003 Va. App. LEXIS 46 (Feb. 5, 2003).
[34] See Commonwealth v. Andrews, 280 Va. 231 (2010).
[36] Id. (quoting Judge Rossie Alston).
The Vetting Room 