Gov. Nathan Deal will have the chance to expand his imprint on Georgia’s most powerful court — and another opportunity to reshape Georgia’s legal system — under a monumental judiciary makeover he’ll sign into law Tuesday.
The legislation will expand the Georgia Supreme Court from seven justices to nine, giving the governor the power to make those coveted appointments. Coupled with two upcoming retirements and another appointment he previously made, the Republican will now have the chance to tap the majority of the court’s justices.
The expansion, which breezed through the Legislature with bipartisan support, gives a new jolt to Deal's efforts to remake the judicial system. The governor won approval last year to add three judges to the Georgia Court of Appeals, the state's second-highest court, and he's stocked lower courts with more than 70 new judges vetted by the governor and his closest allies.
Until now, though, he's left only a limited mark on the Georgia Supreme Court, which has the final say on many of the state's most controversial legal debates. The governor's sole appointment to the Supreme Court's bench so far is Keith Blackwell, who was tapped in June 2012.
But two of the court’s six other justices, Chief Justice Hugh Thompson and Presiding Justice Harris Hines, said they plan to retire before Deal’s tenure is up. Add in the two new slots, and Deal has the chance to appoint a total of five justices before he leaves office in January 2019.
Supporters of the measure, including several judicial leaders, said it’s needed to help the court system keep pace with the demands of a fast-growing state. Thompson pointed to some projections that show Georgia’s population will add millions more in the next decades.
“We’re trying desperately to be sure our judicial branch of government is up to par for whatever needs that growth will bring,” the chief justice said Monday in an interview. “I’m delighted more people will be involved in the process. The more eyes and ears and minds that look at an issue, the more likely we’ll have an opinion that’s correct today and in the future.”
Critics likened Deal's move to President Franklin Roosevelt's attempt to expand the U.S. Supreme Court in the 1930s, but no concerted effort to block the measure by Democrats or other opponents ever surfaced. Senate Minority Leader Steve Henson said that's because it seemed like a "done deal" given the GOP's overwhelming majorities in the Legislature.
“This is giving the governor too much power, and it’s part of a national trend making the judiciary more of a political playground,” said Henson, a Tucker Democrat who opposed the measure. “It’s unnecessary and the governor is using it as a power grab.”
While legislation can be undone and pet projects abandoned, a governor’s judicial appointments can far outlive his or her time in office. And if history is any guide, Deal will gravitate toward younger, conservative candidates whom he views as a shoo-in for election. Appellate court justices must run for six-year terms, but incumbents are rarely ousted.
The Georgia Supreme Court's impact should not be underestimated. Many of the highest-profile debates land before the court, such as death penalty cases and the interpretation of controversial legislation. Deal, for one, often says he was spurred to push for broader education changes by the court's 2011 decision that overturned the system to approve charter schools.
The court is also the venue for many legal fights over more obscure issues, including cases involving divorces, land titles and wills. That, too, will change with this legislation, which will give the Court of Appeals jurisdiction over those disputes.
Some legal analysts were skeptical the move would improve Georgia’s judicial system. Leah Ward Sears, a former chief justice of the Georgia Supreme Court, said she hasn’t met anyone who believes the court isn’t functioning well as it is.
“I, personally, don’t want to impute motive, but I know a number of people who believe that if the court contained more ‘friends,’ more cases would be decided the way they want them to be,” said Sears, who left the bench in 2009. “And that’s not a good thing for the judiciary, the only branch of government where politics is supposed to be a bad idea.”
And Page Pate, a defense attorney who has argued before the court, questioned why Deal would "restructure a branch of state government that actually works" and suggested it was more palatable to judicial leaders after the governor threw his support behind a new judicial complex that would be the most expensive state-funded building in state history.
Thompson, the current chief justice, said he’s confident the governor didn’t have an ulterior motive for the court’s expansion.
“The people can say that, but I tend to have a more generous view of the governor and the process itself,” Thompson said. “We are really trying to prepare for the growth that’s coming than reacting to some opportune move for the time. This is going to be more impactful going forward than anyone can ever say it is.”
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