Gov. Nathan Deal said Monday that he wants to add two justices to the Georgia Supreme Court, a plan that could potentially give the Republican the opportunity to appoint a majority of the justices to the powerful court’s bench before he leaves office.
The governor said a panel he recently appointed will take up his recommendation to add two justices to the seven-member court over the next few months and report its conclusion weeks before lawmakers, who would have to approve the expansion, return to Atlanta in January for another session.
“As our state continues to grow, the demands of the court also grow. And we have to keep up with that,” Deal said. “And I believe that will be one of the things we at least should consider as part of our overall criminal justice reform.”
Earlier this year, Deal won legislative approval for an expansion of the Georgia Court of Appeals from 12 to 15. More than 100 applicants sought the positions, and the Judicial Nominating Commission has whittled the list down to 42 finalists, including several who were interviewed on Monday.
Increasing the number of judges on Georgia’s Supreme Court is likely to be a tougher fight. Critics are likely to raise the specter of a chief executive “packing” the court, much like the blowback that stymied President Franklin Roosevelt’s attempt to expand the U.S. Supreme Court in the 1930s.
Page Pate, a defense attorney who has argued before the state’s top court, said Deal’s proposal smacks of “pure politics” that would tarnish the bench’s reputation as a moderate force for justice.
“We’ve always had a very moderate court regardless of how red the state is,” Pate said. “I’m very concerned that that moderation would be in jeopardy.”
The proposal’s supporters may try to smooth the way by striking a compromise with the judicial branch that could involve a new judicial building — one proposal calls for the most expensive state-funded building in state history to be built near the Capitol — and a plan to shift more of the cases that would now be heard by the Georgia Supreme Court to a lower court.
“Instead of having three feet of papers to read and digest in a day, they’d have a foot and a half,” said Randy Evans, Deal’s attorney and a co-chairman of the Judicial Nominating Commission, which governors have used since the 1970s to sort through judicial openings. “They’ll still have a heavy workload, but they’d have more time to spend on the issues. And on writing opinions.”
Deal has already made an impact
The governor has slowly reshaped Georgia’s judiciary by stocking the courts with more than 60 new judges who have been vetted by Deal and his closest aides. But he has so far left only a minimal mark on the Georgia Supreme Court, which has the final say on many of the state’s most controversial legal issues.
The governor’s sole appointment to the Supreme Court’s bench so far is Keith Blackwell, who was tapped in June 2012. But a court spokeswoman has said two of the court’s six other judges, Chief Justice Hugh Thompson and Presiding Justice Harris Hines, plan to retire before Deal’s tenure is up.
Adding two more judges to the bench could give Deal the chance to appoint five of the Georgia Supreme Court’s nine justices — giving him a majority of the court’s appointments and a chance to expand his imprint on the state’s legal system far beyond his eight years in office.
Many of the state’s highest-profile debates wind up before the Georgia Supreme Court, from death penalty cases to the interpretation of controversial legislation. But the court is also the landing spot for many legal fights over more obscure issues, including cases involving divorces, disputes over land titles and wills.
That has been a sticking point for some would-be court reformers. A paper published in the Georgia State University Law Review in 2014 suggested the Legislature transform the bench into a true “court of last resort” that would have more leeway to choose what cases it would hear.
The governor’s office cited the report as a factor in developing the proposal, and Deal said Monday that he wanted to “shift more of the (Supreme Court’s) mandated cases” to the lower court.
Others aren’t so certain that expanding the court would decrease workload. Pate said an expansion could wind up increasing the time needed to deliberate each case because more justices — and potentially more opinions — would be at play.
And Leah Ward Sears, a former Georgia Supreme Court chief justice, said a more “practical” solution could involve increasing the number of law clerks assigned to each justice, narrowing the scope of cases it can hear and waiting to see how the expansion of the Court of Appeals affects the top court’s work.
But she said politicians should not lose sight of other “pressing problems,” such as the need to update the aging courthouse that sits across the street from the Gold Dome and build on the 5 percent pay raises that appellate court judges were awarded earlier this year.
“The court facilities are no longer befitting of a state like Georgia. Other states have passed us by,” said Sears, who now works at the Schiff Hardin law firm. “We also need to continue to pay close attention to judicial salaries so we can continue to attract the best and the brightest to the judiciary. The first-year lawyers at my firm make about the same as our state’s chief justice.”
Any changes would likely have to pass a majority vote of the state Legislature, where commanding Republican majorities don’t necessarily mean it will face an easy path. Deal said he would first await the recommendations of the 12-member Appellate Jurisdiction Review Commission he appointed last week.
The commission includes Blackwell and fellow Supreme Court Justice David Nahmias, as well as several Deal allies, including his executive counsel, Ryan Teague, and former aide Thomas Worthy. Another member, Kyle Wallace, is the co-author of the law review report that called for the vast changes to the appellate court system.
The Supreme Court, meanwhile, indicated it is open to a dialogue with the governor.
“We look forward to future discussions with the governor and to working with him about matters pertaining to the Supreme Court of Georgia,” said Thompson, the chief justice. “I know the governor shares our interest in the future of this court and in the court system of our state.”
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