Robert Benham and his 1984 appointment with Georgia history

Georgia Supreme Court Justice Robert Benham in a 2017 file photo. DAVID BARNES / DAVID.BARNES@AJC.COM

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Georgia Supreme Court Justice Robert Benham in a 2017 file photo. DAVID BARNES / DAVID.BARNES@AJC.COM

Robert Benham, currently the longest-serving member of the Georgia Supreme Court, formally announced this week that he would not seek re-election in 2020.

The imminent nature of his departure has been a poorly kept secret, given the generous retirement incentive offered by the state of Georgia: If you’re still on the bench at age 75, your pension disappears.

“If I lose my pension, I lose my wife, too,” explained Benham, 72.

We were in his fifth-floor office, just before lunch. Those of you who consort with judges on a regular basis know they are poor conversationalists when it comes to current events — especially if journalists are in the room.

There’s no telling what issue might come before the Supreme Court during the 18 months remaining in Benham’s term.

History becomes a safer topic. Which in this case was fortunate, because on that score, Benham has a large supply. In 1984, within the life span of you Gen Xers, Benham became the first African-American in Georgia to win a statewide election.

His victory came via an open but mostly silent conspiracy that involved a governor, top members of the State Bar, the business community, the press, and every black leader in Georgia.

Segregation was hardly dead in the early 1980s. African-Americans might control the city of Atlanta, but even a black banker in a three-piece suit thought twice before strolling downtown with a white woman as his sole escort. The code language of old was still in place. If a white customer casually brushed the hand of a black cashier when handing over his money, he was making a statement about his own racial attitudes.

If he was careful not to touch the black hand, well, that was a statement, too.

Democrats remained in control of the state Capitol through a coalition of rural white and urban black voters. But tension in the alliance was growing. African-Americans wanted something to show for their efforts — and at the top of their wish list were black judges.

In 1984, a resignation on the state Court of Appeals created an open seat that could be immediately filled by Gov. Joe Frank Harris of Cartersville, a former state lawmaker and the owner of a local cement company.

Harris’ eye fell on Benham. It was a natural choice. Benham, too, lived in Cartersville — even now, 35 years later, he and the former governor live only a block and a half apart. More important, Harris knew Benham’s parents. His father had served on the city council. His mother had owned a small department store in downtown Cartersville where blacks could shop in comfort.

“If you were African-American, you could shop in the white stores, but you couldn’t try on the clothes. You couldn’t pick up the clothes,” Benham said. “My dad would never go to town with my mother because he couldn’t stand the prejudice.”

As a boy, Benham found one of the more puzzling aspects of segregation to be the concept of forbidden fruit. “In grocery stores, you could buy the fruit, but you couldn’t touch the fruit. If you touched it, you had to buy it,” he said.

At the time, Cartersville was an insular community with a relatively small black population. It was far from a racial paradise, but it had a reputation for conflict resolution. “It was a conscious effort. It wasn’t something that just happened,” Benham said. “We had racial incidents in town, but people got on it in a hurry.”

Which is not to say that Benham was always judicious in his own behavior. While he was a high school senior, in the neighborhood of 1963, a new Dairy Queen opened. It had one serving window for whites and another for “colored.” This was the season of lunch counter protests across the South.

“We decided we would test the system. We went to the colored window, and we told the guy that we were having a party and we needed hot dogs and hamburgers and french fries for 50 people. Oh, he started frying,” Benham said.

As the cook finished, Benham and his friend drifted to the window for whites. “He said, ‘Well, come on over to the colored window.’ I said, ‘No, we’re not coming over there. If you’re going to sell them to us, you’re going to have to sell them to us at the white window.'

“He let loose a fusillade and then started throwing them in the trash can. We just laughed and drove away,” the Supreme Court justice said.

This was a lucky thing. “If he had brought them to the white window, there would have been a problem because we didn’t have any money. We were depending on segregation to prevail at that point,” Benham said.

Benham earned his bachelor’s degree from Tuskegee Institute, then became the second African-American to graduate from the University of Georgia School of Law.

A white law school friend, who also lived in Cartersville, brought Benham to see his father, a Bartow County Superior Court judge. The judge asked Benham where he intended to set up a practice. Benham said California was on his mind.

”You’re from Cartersville. You’re one of ours. You need to come back home,” said Judge Jefferson L. Davis.

The South can be a complicated place. Encouraged by a judge named after the Confederacy’s only president, the black lawyer came home and set up shop.

One day, that white fry cook from Dairy Queen walked in for legal advice. He didn’t recognize Benham, who never told him that they already had a history. That would have been rude.

”That was then, this was now,” Benham said. “Sometimes, you take people where they are and then move them where they ought to be.”

Now, about that 1984 contest. Immediately upon his appointment to the nine-member Court of Appeals by Harris, Benham became the incumbent. Which would give him an “i” next to his name in the quickly approaching nonpartisan August election.

Three white attorneys challenged him, and Benham, then 37, was advised that a runoff would be fatal to his chances.

“I swallowed hard because there were certain counties I couldn’t go to,” he said. “My campaign committee sat down, and we took a map of the state. And we went over how the campaign should be organized. We made a conscious decision that we wouldn’t do any television with pictures. We decided where I would go and where I could not go. I had to be a realist.”

Southwest Georgia was one of those no-go areas. Local white lawyers, who understood what was at stake, campaigned in his stead.

Before one crowd of lawyers in the safety of Atlanta, Benham painted himself as a rabbit, right down to the hare’s “short, stubby body.” His three white opponents, he allowed, were bloodhounds on the scent of a kill. “They are running for the thrill of the chase,” he said. “I’m running for my life.”

The governor’s own network kicked in. Benham’s assigned campaign manager was Bobby Kahn, whom Harris would name executive director of the state Democratic Party the next year. (Kahn would later serve Gov. Roy Barnes as chief of staff.)

When reporters asked Benham why flyers in the city of Atlanta used his photograph but flyers in South Georgia didn’t, Benham -- with a straight face -- said it was a cost issue. We knew this not to be the case. With the governor’s help, Benham’s campaign had taken in more cash than any judicial race in state history. But we also knew what was up, and so we didn’t press the issue. Yeah, I was there.

Benham won 58.6% of the vote, avoiding the runoff that he and every other co-conspirator feared. He would serve on the appeals court for five years. In 1989, Gov. Joe Frank Harris, his neighbor, appointed Benham to the state Supreme Court, breaking another racial barrier.

He’s held that job ever since, with 18 more months of history to make.