Gov. Nathan Deal has slowly remade Georgia’s judiciary by stocking the courts with more than 60 new judges who passed his ideological tests and meet his standards. But his biggest mark may be yet to come.
In the coming months, he’ll tap three more judges for the Court of Appeals thanks to legislation he signed that expands the state’s second-highest court to 15 jurists. And he’s expected to appoint at least two more judges to the Georgia Supreme Court before he leaves the Governor’s Mansion in 2019.
Deal said in an interview that he’ll select each with a combination of electability, temperament and conservative bona fides in mind. If history is any guide, he’ll also gravitate toward younger candidates who are more likely to leave their imprint long after Deal’s second term is over.
“I’m looking for somebody who is qualified and has the understanding of the areas they’ll confront from the bench,” Deal said. “And overall, we’ve had great success with that formula.”
The steady flow of appointments puts Deal on pace to match the 127 judicial postings Zell Miller made over his two terms. Some have come due to retirements and inquests into misconduct complaints, others are created by legislation or Deal’s domino-effect decisions to elevate sitting judges into higher courts.
But as he prepares for a new round of coveted appointments, the governor also faces pressure to bring more diversity to the bench. An Atlanta Journal-Constitution analysis of Deal’s appointments shows that roughly 20 percent are women and about 15 percent are minorities, including one Hispanic appointment and another who is Asian-American.
Those numbers aren’t reflective of Georgia’s population. Census data show roughly one-third of Georgia’s population is black, and an additional 9 percent is Hispanic. Slightly more than half of the state’s residents are women.
Former Georgia Supreme Court Chief Justice Leah Ward Sears, the court’s first black female justice, encouraged the governor to keep gender and racial diversity in mind as he vets his second-term picks.
“This is a serious concern, since racial prejudice and differential treatment obviously continues to exist in this state and country,” Sears said.
A judicial pattern
The governor is a former district attorney and juvenile court judge who prides himself on warm relations with the legal community. His son Jason is a Hall County judge, and the governor signed legislation in May to give judges a 10 percent pay increase after intense lobbying from the judiciary.
His judicial picks have a profound impact on Georgia residents. The lower-level judges Deal has appointed issue hundreds of decisions each year involving criminal cases and civil complaints that form the basis of Georgia’s legal framework.
Many of the state’s highest-profile debates wind up in the appellate courts. The Georgia Supreme Court’s seven justices review each of the state’s death penalty cases, and recent key decisions struck down a law that cleared the way for a surge of new state-approved charter schools and upheld the city of Atlanta’s plans to help finance the new $1.4 billion Falcons stadium with public bonds.
“These judges are highly involved in shaping the pattern of the law,” said Ron Carlson, a University of Georgia law professor who frequently leads seminars for judges in Georgia. “The appointments at all levels are vital, and they leave an extremely long-lasting impact. That’s why the public ought to be paying attention.”
The judges Deal has tapped largely follow a similar pattern. They are typically conservative, usually white and have a strong shot at election victories when they face their first vote. And they tend to be self-selecting; not surprisingly, only a handful of Democrats have asked Deal for an appointment to a judgeship.
All are vetted through the Judicial Nominating Commission, a panel that Georgia governors have used since the 1970s to sort through the judicial openings. That commission is stocked with 26 members, mostly Deal allies, who include Pete Robinson, an influential lobbyist who is one of Deal's top fundraisers; Chris Carr, the governor's economic development deputy; and Thomas Worthy, a former Deal aide.
Its leaders keep the cumulative effect of Deal's judicial appointments — and his legal legacy — in mind.
“People will remember him for criminal justice reform or for the transportation bill,” said Randy Evans, Deal’s attorney and a co-chairman of the commission. “But in my opinion, the greatest impact will be on the legacy of the judiciary. He’s brought together a group of people with a philosophy that reflects his values, and that will last many years after he’s left office.”
Some of Deal’s appointments also share another trait: deep ties to the governor and his office.
Travis Sakrison was the governor's pick to lead the state public defender system before he was appointed to the bench. Larry O'Neal, until recently the House majority leader and a reliable Deal ally, was chosen for a tax tribunal. And several other GOP lawmakers, most recently state Rep. Mike Jacobs, have been plucked by Deal for judicial posts.
At least a dozen of the judges Deal has appointed were donors to his political campaigns, including Fulton County Superior Court Judge Todd Markle, the governor’s former executive counsel, who donated $7,600 to the governor in the 2010 cycle.
Several have remained donors after they took the robes, such as Gwinnett County jurist George Hutchinson and Waycross Circuit Judge Jeff Kight, who both gave to Deal in the past election campaign.
Appellate decisions
The most coveted spots are reserved for the state’s appellate courts, which often get the final say on some of Georgia’s most controversial legal debates. Deal has so far tapped four judges for the Court of Appeals and will add three more to the tally by the end of the year.
He could yet have another chance, as Court of Appeals Chief Judge Herbert Phipps is set to turn 75 by 2017, when he’ll face a decision to step down or lose his lucrative state retirement benefits.
Deal has had less influence on the state's highest court with but one appointment — Keith Blackwell — in June 2012. But two of the court's six other judges, Chief Justice Hugh Thompson and Presiding Justice Harris Hines, will turn 75 in 2018 and will be forced to make the same decision as Phipps. A court spokeswoman said both plan to retire by then.
The governor hinted he would angle for younger nominees for the appellate bench seats. Blackwell was 36 when he was tapped by Deal, and the governor’s four appointments to the Court of Appeals were in their 30s and 40s when he chose them for the bench.
The governor also said he scours for any clues that the candidates will seek to be “judicial activists” and legislate from the bench.
“I believe the judiciary is designed to interpret the laws made by the legislative branch,” he said in the interview. “Sometimes, judicial opinions carry over and become a substitute for legislative action, and I would not embrace someone who actively advocates that from the bench.”
The competition can be intense for judgeships in Atlanta and other urban areas, where dozens of well-known attorneys often throw their names in the ring. In some rural areas, though, the pickings can be slim. The commission’s records show that on at least nine different occasions, three or fewer judicial applicants were interviewed. In some cases, only one contender was interviewed.
Evans said that the lack of interest can make it harder for the commission to attract a competitive and diverse field. Two recent open judicial posts failed to lure a single female or minority candidate, he said.
“The challenge we have, just candidly, is that we just don’t have many people apply,” he said. “It’s misleading for those in metro Atlanta because when a job opens, we have 70 applicants. But that dwindles dramatically outside Atlanta to a very small handful of candidates in most cases.”
‘He cannot let that happen’
Evans said diversity is a “very important” factor but that it falls behind other considerations such as judicial temperament and electability.
Deal's two picks to the Fulton County Superior Court bench were both white men who replaced retiring black judges; he later tapped a black woman to replace a retiring DeKalb County jurist who was the Superior Court's first black chief judge. Another Deal appointee to DeKalb's bench, Eleanor Ross, has since been appointed by President Barack Obama to become the first black woman on the U.S. District Court in North Georgia.
John Allen, the lone black Superior Court judge sitting on the Columbus-area circuit's bench, wrote Deal in 2013 urging him to strongly consider diversity in naming a candidate to replace him because an all-white and all-male judiciary in the circuit would be "egregiously unrepresentative of the population."
Deal tapped a white male to replace Allen, though he selected a black man and the first woman to serve on the circuit’s bench since 2004 for two other openings on the circuit.
Sears, the former chief justice, said she’s hopeful the governor will adopt a different calculus when he makes the next rounds of appellate appointments.
“I hope that the governor understands that a nondiverse judicial system will certainly result not only in legally flawed decisions but also a huge loss of respect and public confidence by many Americans,” she said. “He cannot let that happen.”
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