05/22/2012 09:38 am ET

Tracy Thorne-Begland, Gay Prosecutor Rejected For Judgeship, May Get Temporary Appointment

Although conservatives in the Virginia legislature rejected Tracy Thorne-Begland, a Richmond-based prosecutor who is openly gay, for a judgeship last week, he may still be able to get the appointment -- at least on a temporary basis.

The Richmond Times-Dispatch reports that because the House of Delegates did not approve someone to fill the position, "the six judges of Richmond's Circuit Court have the authority to decide whether to fill the judgeship. The circuit judges are not required to fill the position, but the opening is in a busy judicial district."

"He would certainly retain my support, and the support of the Richmond delegation," said Sen. A. Donald McEachin (D-Henrico) who sponsored Thorne-Begland's nomination in the Senate.

Begland is a former fighter pilot and Navy officer who was discharged from the armed forces because of "don't ask, don't tell," which barred openly gay individuals from serving. His nomination had bipartisan support from the Courts of Justice Committee, which vets judicial appointments. But a last-minute lobbying effort by social conservative lawmakers and the conservative advocacy group Family Foundation doomed Begland's nomination, which failed to garner the majority votes needed in the 100-member House of Delegates.

Begland received 33 votes, including those of eight Republicans. Thirty-one Republicans voted against him, while nine Republicans and one independent abstained. Twenty-six delegates, including seven Democrats, did not vote; 17 of those lawmakers had already left the Capitol for the night. The vote happened just after 1:00 a.m. on May 15.

Del. Bob Marshall (R-Manassas), who led the opposition to the nomination, said he did not believe Begland could be an impartial judge because of his sexual orientation.

"Marriage is between one man and one woman, and the the applicant has represented himself in public in a relationship that we don't recognize in Virginia," Marshall said in an interview with WRIC, the ABC affiliate in Richmond.

The judgeship for which Thorne-Begland was nominated is a six-year position. If appointed by the judges for an interim spot, he would be subject to approval by the General Assembly when it reconvenes in January.

McEachin told the Times-Dispatch that he was confident Thorne-Begland would receive more votes in January, if he is allowed to serve on a temporary basis.

"By that time, there would be a full body of work that will certainly demonstrate what we in Richmond know to be the case -- that he can be a competent and extremely diligent jurist," McEachin said.

In a statement, Gov. Bob McDonnell (R) seemed to condemn the vote, saying, "In my consideration of judicial candidates I only consider the individual's ability to do the job well. If anyone voted against Mr. Thorne-Begland because of his sexual orientation, that would be very disappointing and unacceptable."

Attorney General Ken Cuccinelli, a Republican who is running to be Virginia's next governor, said sexual orientation should not be a "deciding factor" in judicial nominations, although he still expressed reservations about Thorne-Begland. Cuccinelli "indirectly referred to Thorne-Begland's coming out after taking an oath to serve," and his "public opposition to Cuccinelli's letter to the state's public colleges advising them that they could not include sexual orientation as part of their anti-discrimination hiring policies," according to the Times-Dispatch.

Lt. Gov. Bill Bolling (R), who is challenging Cuccinelli for the gubernatorial spot, said through a spokeswoman, "The lieutenant governor has always believed that judicial appointments should be made on the basis of merit and qualification, and no other consideration, personal or political, should be a factor."