By
Randy Evans

No doubt, Gov. Nathan Deal has already made a lasting impact on Georgia’s courts. Just into his second term, he has appointed almost 60 judges to the State (18) and Superior (34) courts, as well as the Georgia Tax Tribunal (2), the Georgia Court of Appeals (4) and the Georgia Supreme Court (1).

While legislators and the governor pass laws, courts interpret them. And, how they interpret them often has as much, if not more, impact on the law itself. This is especially true for the appellate courts.

So far, Gov. Deal’s appointments to Georgia’s appellate courts have been meaningful, but not monumental. Of Georgia’s 12 Court of Appeals judges, he has appointed four or just one-third. Of Georgia’s seven Supreme Court justices, he has appointed only one.

However, all of that is about to change over the next few years, for two different reasons.

First, earlier this year, the Georgia General Assembly passed legislation creating three new judgeships on the Georgia Court of Appeals, increasing the number from 12 to 15.

The three new Court of Appeals judges will not take office until 2016. Gov. Deal will appoint them later this year after the Georgia Judicial Nominating Commission interviews applicants and recommends a “short list” to him. These appointments will increase his total from four to seven, or just under half of the Court of Appeals.

Second, two justices on the Georgia Supreme Court will retire before Gov. Deal’s term ends. Georgia’s retirement laws provide that both appellate court judges and Georgia’s Supreme Court justices must retire on or before the day he or she reaches the age of 75, or on the last day of the term in which she or he reaches 70, whichever is later. Any appellate judge who fails to resign then receives no retirement benefits.

Currently, two Georgia Supreme Court justices fall within this category, effectively mandating their retirement before Gov. Deal’s second term ends: Chief Justice Hugh Thompson and Presiding Justice Harris Hines. To keep their retirement benefits, both must retire during or before 2018. Gov. Deal does not leave office until 2019.

With their retirements, Gov. Deal will add two justices to Georgia’s highest court. In his first term, Governor Deal elevated Court of Appeals Judge Keith Blackwell to the Georgia Supreme Court. So, by the end of his term, he will have appointed three of the seven justices.
Like Justice Blackwell, Gov. Deal typically elevates judges from lower courts when making appointments. If that pattern continues with his Georgia Supreme Court picks, he is likely to elevate two Georgia Court of Appeals judges opening up two more positions on the Court of Appeals.

In addition to the two Georgia Supreme Court justices, one current member of the Georgia Court of Appeals also faces mandatory retirement during Gov. Deal’s second term. Chief Judge Herbert Phipps will also turn 75 before Gov. Deal’s term ends.

The net effect of the new judgeships and the anticipated retirements will be quite a few appellate appointments by Gov. Deal. Absent some change in direction, he could be looking at making eight appellate appointments in the next few years. And, that assumes no other vacancies on either the Georgia Supreme Court or the Georgia Court of Appeals for unforeseen reasons.
The impact on the judiciary becomes even greater when viewed in the context of the combination with Governor Sonny Perdue’s appointments. During his eight years, Governor Perdue appointed two justices to the Georgia Supreme Court (Justices Harold Melton and David Nahmias) and two judges to the Georgia Court of Appeals (now Justice Keith Blackwell and Court of Appeals Judge Stephen Dillard.)

Should Gov. Deal indeed make two more appointments to the Georgia Supreme Court, Republican governors will have appointed five of the seven Georgia Supreme Court justices. And, if things continue as they have in the past, Republicans will have appointed 10 of the 15 Georgia Court of Appeals judges by the time Gov. Deal leaves office.

But, before anyone on either side of any issue gets too worked up, it should be noted that Gov. Deal will be replacing two justices appointed by Gov. Zell Miller. Then-Gov. Miller appointed Chief Justice Thompson to the Georgia Supreme Court in 1994 and Presiding Justice Hines in 1995.

Although Gov. Miller was (and is) a Democrat, most would agree that he is more Republican than most Democrats. As a result, no one should expect too much of a shift in the balance of the Georgia Supreme Court with Gov. Deal’s upcoming picks.

(In retrospect, Gov. Sonny Perdue’s replacement of Chief Justice Norman Fletcher and Chief Justice Leah Sears with Justices Harold Melton and David Nahmias had a much more significant impact on the Court.)

The Georgia Court of Appeals will be a much different story. That court is in transition and Gov. Deal’s picks could change it for two decades or more.

Randy Evans is an attorney and columnist.