Nahmias adds conservative voice to Ga. high court

Prosecutor replaces liberal jurist Sears

When David Nahmias took his seat last week as the state’s newest justice, the strongly conservative lawyer changed the ideological character of the Georgia Supreme Court.

But he may not change the court itself. The justices vote unanimously almost 90 percent of the time, and it’s unclear whether Nahmias’ voice will simply add to all that harmony or whether he’ll bring an unaccustomed dissonance to the bench.

Still, his appointment cannot help but make the state high court decidedly more conservative. He replaces Leah Ward Sears, who was the seven-member court’s most liberal member. She retired in June.

“It will be a dramatic move to the right,” said Atlanta lawyer Randy Evans, who closely follows the high court. “You couldn’t move much farther to the left of Sears.”

In the coming months, Nahmias, 45, will make his mark through his written opinions. These will set precedent for others to follow.

It is unlikely he will cast the deciding vote on many cases because he is joining a court that is in total agreement most of the time. Since the beginning of 2008, the Georgia Supreme Court has issued more than 550 opinions, about 87 percent of which were unanimous.

But legal experts who follow the high court say it is often the small percentage of cases in which the justices are sharply divided that draw the most attention and are the most controversial.

During this timeframe, Sears cast the deciding vote — as part of a 4-3 majority — in fewer than a dozen cases, a survey of the court’s opinions shows.

On Tuesday and Wednesday, his first two days of hearing oral arguments, the new justice was often engaged, asking probing questions. When attorneys gave responses skirting the issue, Nahmias would not let them continue before asking, “What’s the answer to the question?”

On Wednesday, Nahmias considered whether a nursing home must turn over the medical records of a man who died at the facility to his surviving wife, who is considering a wrongful death suit. Federal privacy laws forbid the disclosure of such records unless it is to someone who is acting “on behalf” of the deceased, the company’s lawyer argued.

Nahmias did not appear to buy that argument. If he died, Nahmias wondered aloud, wouldn’t it be in his interest for his wife to know how he died?

Nahmias (pronounced NAH-mee-us) also heard the Fulton County District Attorney’s Office’s appeal of its case against the so-called “Pantyhose Rapist,” Ali Nejad, whose convictions for raping two women in 2005 had been overturned. On Tuesday, he will hear a high-stakes challenge to Georgia’s sweeping tort reform law.

Nahmias has proved to be a quick study. He was privately sworn in as a justice shortly after he resigned Aug. 23 as U.S. attorney for the Northern District of Georgia and has since worked in his new chambers, poring over legal briefs. On Sept. 3, at a ceremony at the state Capitol, Nahmias again took his oath of office, this time from Gov. Sonny Perdue.

By replacing Sears, Perdue has used his second appointment to greatly reshape the high court.

In 2005, Perdue replaced Norman Fletcher, who retired, with Justice Harold Melton, the governor’s executive counsel.

Both Fletcher and Sears were members of the court’s liberal wing. Carol Hunstein, who succeeded Sears as chief justice, and Justices Robert Benham and Hugh Thompson sometimes joined Sears and Fletcher in the court’s most hotly disputed cases. Reliably conservative Justices George Carley and Harris Hines frequently issued dissents.

“Those days are likely gone,” said Evans, former counsel to the state Republican Party. “If you’re in the business community, you have to be very happy. The chance for a successful challenge to [the 2005 tort reform law] is now very remote. If you’re a prosecutor, you must be cautiously optimistic. If you’re a social conservative, you’re in a wait-and-see mode.”

State lawmakers should be overjoyed because Nahmias has said he will give deference to the legislative process.

“Judges should apply the laws as they were understood by the democratic process that enacted them,” Nahmias said in a recent interview. “The way laws should be changed is through the ballot box, not a judicial opinion.”

Nahmias has said his judicial philosophy is aligned with three of the leading conservative jurists in the country, each of whom he worked for after graduating magna cum laude from Harvard Law School in 1991. He first clerked for Judge Laurence Silberman on the D.C. Court of Appeals and then for U.S. Supreme Court Justice Antonin Scalia. He next joined a Washington law firm and worked for John Roberts, now chief justice of the U.S. Supreme Court.

All three wrote glowing recommendations in support of Nahmias’ appointment.

Atlanta attorney Bruce Harvey predicted Nahmias will be persuasive when the justices meet privately to decide cases. “He is an intellect to be reckoned with and will be a strong force on the court,” Harvey said.

Stephen Bright of the Southern Center for Human Rights said Nahmias’ appointment “is about as major a shift in philosophy as you can have between two justices. Chief Justice Sears was someone who had a moderate to liberal outlook on the law and was very concerned about issues of fairness, racial discrimination and prosecutorial overreaching.”

Mike Rogers, who tracked appellate rulings for consumer rights group Georgia Watch, said Sears “was genuinely an advocate for the rights of individuals in all areas of law, particularly in consumers’ rights cases,” and could be counted on to issue consumer-friendly rulings.

As for Nahmias, it’s too early to say if his rulings will be a marked departure from Sears’, Rogers said.

Atlanta criminal defense attorney Don Samuel said Nahmias showed he could be innovative by agreeing to give rapper T.I. a reduced sentence on federal weapons charges — provided he preached nonviolence to at-risk youths for at least 1,000 hours of community service.

“My experience with him over the past decade has convinced me he is fair, he is willing to be innovative, and that he is willing to listen to both sides of an argument before anchoring himself to one position,” Samuel said.