BY JEFF SCHAPIRO

Times-Dispatch Staff Writer

The elevation of a Virginia Supreme Court justice to a Richmond-based federal appeals court could trigger more partisan squabbling over a prized state judgeship.

The U.S. Senate yesterday backed Associate Justice G. Steven Agee for the 4th U.S. Circuit Court of Appeals with a 96-0 vote.

He was favored by the White House and by the state's two U.S. senators, Republican John W. Warner and Democrat Jim Webb.

But the bipartisanship lifting Agee to one of the most important appellate courts in the nation may not guide the selection of his successor on the seven-member Virginia Supreme Court.

Because the General Assembly, required by the Virginia Constitution to elect all judges. is not in session, it would fall to Gov. Timothy M. Kaine to fill a vacancy on the state's high court.

However, the legislature will return June 23 for another go at a transportation fix. At that time, lawmakers could pick a new associate justice. "It's a little complicated," said Kaine communications director Delacey Skinner. "It may be that it makes sense for the legislature to appoint them. It may make sense for the governor to appoint. There are a lot of different factors."

The Republican-controlled House of Delegates and the Democrat-dominated Virginia Senate quit Richmond last month leaving vacant a seat on the State Corporation Commission and about a half-dozen circuit court judgeships.

Kaine has signaled that he is planning to appoint a successor to the retired Theodore V. Morrison Jr. on the three-member SCC. Kaine has been urged to name an African-American as commissioner because none has served on the corporate-oversight agency.

Del. William R. Janis, R-Henrico, who vets judicial candidates for the House Republican Caucus, said the legislature may try again in June to choose Morrison's replacement and fill the circuit court judgeships as well as elect Agee's successor.

"We will be in a posture again to have the ability to elect judges," said Janis. "We'll be back in June, and we have a constitutional responsibility to elect judges."

A complex, bipartisan deal to shift a Henrico County circuit court judge to the SCC and install the circuit's first African-American woman fell apart because of a dispute between Janis and Sen. Walter A. Stosch, R-Henrico.

Kaine has already made appointments to the Virginia Supreme Court and Virginia Court of Appeals, sparking speculation in legal and legislative circles of a possible deal with the General Assembly.

Kaine could install a corporation commissioner and win a guarantee of legislative approval in return for deferring to the General Assembly next month to elect Agee's successor.

Among the possible candidates for the Virginia Supreme Court: former state Sen. William Mims, R-Loudoun. He was backed for the Supreme Court last summer by the Virginia State Bar.

Mims, who has ties to both parties, currently is chief deputy to Attorney General Bob McDonnell, the presumed Republican nominee for governor next year.

Mims also might be in line to succeed McDonnell as attorney general if, as expected, McDonnell resigns to focus on his bid for governor.

Contact Jeff Schapiro at jshapiro@timesdispatch.com