When Norman Fletcher, the retired chief justice of the Georgia Supreme Court, argued a case before his former colleagues on the court this month, he received the usual barrage of questions from Justice David Nahmias.
Nahmias is well-known for being the most aggressive inquisitor of attorneys who present arguments before the justices.
With Fletcher, however, at least one prominent lawyer thinks Nahmias went too far.
“I write to inform you that I will no longer support your re-election campaign,” former Attorney General Mike Bowers wrote in a letter to Nahmias on Nov. 6. “This is because of your treatment last Monday of former Chief Justice Norman S. Fletcher in his argument before the court.”
Bowers’ abrupt withdrawal of support is even more noteworthy because he co-chaired Nahmias’ election committee in 2010. In past years, Bowers donated $1,750 to Nahmias’ campaigns.
Nahmias is up for re-election next year and kicks off his campaign next week with a fundraiser at the Commerce Club. Anyone planning to challenge him for his seat would have to qualify in March.
When asked this week to more fully explain his decision, Bowers declined to provide any more details. “The letter speaks for itself,” he said.
Through a court spokeswoman, Nahmias declined to comment. The justice cited the code of judicial ethics which says judges shall not, while a case is pending, make any public comment “that might reasonably be expected to affect its outcome or impair its fairness.”
When contacted Wednesday, Fletcher said he was unaware of Bowers’ decision to rescind his support for Nahmias. Fletcher also declined to comment.
Fletcher, 81, retired from the state high court in 2005 after serving 15 years on the bench, including a term as chief justice. He now practices law in Rome and is among numerous prominent Georgia attorneys listed on Nahmias' campaign website as supporting the justice's re-election in 2016. (Bowers' name is no longer on the list.)
On Nov. 2, Fletcher appeared before the Georgia Supreme Court, representing the state's Judicial Qualifications Commission. He was arguing in support of two advisory opinions the agency had given the state's judiciary: One said judges should not close their courtrooms to the public without making certain findings. Another that told judges they should not file friend-of-the-court legal briefs in ongoing litigation.
Nahmias, the former U.S. attorney in Atlanta, was appointed to the state high court by then-Gov. Sonny Perdue in 2009.
On the bench, Nahmias is by far the most dogged questioner among the court’s seven justices. During oral arguments, he can be relentless asking lawyers to explain themselves and will at times openly express his displeasure if an attorney does not give a satisfactory answer. On Nov. 2, his treatment of Fletcher did not appear to be any more aggressive than his questioning of attorneys in other cases.
It is unusual, however, for a former chief justice to return to the court and present arguments as an attorney. And Nahmias repeatedly challenged Fletcher’s positions, particularly as to whether the court had jurisdiction to sit and hear arguments on the issues at hand.
At one point, Fletcher asked Nahmias to ease up with his questioning.
“I see your position, Justice Nahmias, but I would appreciate being able to present the commission’s full position on this,” Fletcher said.
But Nahmias didn’t let up. He kept asking questions, challenging Fletcher’s position.
At one point, Fletcher, who was only recently retained by the judicial agency, told Nahmias he did not know the details of the Judicial Qualifications Commission’s deliberations before issuing the two advisory opinions.
“We usually like lawyers on both sides if they come before us now to know what happened before in a case,” Nahmias said pointedly. “ … Because the history of this is relevant.”
“I understand,” Fletcher responded. “I understand.”
Fletcher’s argument that the state Supreme Court did not have jurisdiction to hear the case also did not sit well with Nahmias.
Nahmias repeatedly reminded Fletcher, who conceded the point, that the state Supreme Court could ask the Judicial Qualifications Commission to reconsider its advisory opinions.
“Do we also have the power, instead of sitting in a dark room somewhere talking to each other, to ask the parties to give us briefs, invite other people if they wanted to to give us briefs, and give an open argument in open court?” Nahmias asked. “Or do we have to do it in some backroom proceeding?”
In a later exchange, Fletcher told Nahmias, “With all due respect, this court does not have the power to cause the commission to come before you in the means it is done today.”
But Nahmias pressed on, returning to the court’s right to decide the issue in an open process. This should be allowed to occur, he added, if the court has the right to ask the commission to reconsider its opinions.
“Do you concede that point?” Nahmias asked once again.
Clearly exasperated, Fletcher replied, “Yes, I’ve said that three times, I think, your honor.”
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