Georgia High Court Rules Next Justice Will Be Appointed, Not Elected

Georgia Gov. Brian Kemp greets supporters during a 2018 campaign stop at Daniel Field in Augusta. (Michael Holahan/The Augusta Chronicle via AP)

(CN) — At the end of February, Georgia Supreme Justice Keith Blackwell announced his resignation, triggering a legal challenge that pitted against each other the two methods Georgia uses to place justices on its highest court.

Blackwell, appointed in 2012 by then Gov. Nathan Deal, said with his two daughters heading off to college in the next few years he was going to return to private practice. The resignation would take effect Nov. 18 – six weeks before Blackwell’s six-year term would expire.

After Blackwell’s announcement, the Office of the Secretary of State canceled the nonpartisan election for his seat scheduled for May 19 and refused to qualify two candidates seeking a spot on the Supreme Court. The candidates filed two lawsuits, arguing what the secretary of state did was illegal.

On Thursday, the Georgia Supreme Court ruled that because there will be a vacancy on the court, the governor has the authority to appoint the next justice to fill Blackwell’s seat. The court’s ruling also found the secretary of state cannot be compelled to hold the election.

“Under our current constitutional system, elections for the next term of an incumbent Justice’s office are not made meaningless only by a late-in-term resignation, but rather by a vacancy arising at any time during an incumbent’s term,” said the conclusion of the 71-page opinion.

The 6-2 decision was written by Presiding Justice David E. Nahmias, who was appointed to the bench by then-Gov. Sonny Purdue in 2009.

According to Nahmias, once a justice sends a letter of resignation and the governor accepts it, it cannot be withdrawn. When a governor fills a vacancy on the Supreme Court, the replacement justice does not sit for the remainder of the term, but rather a new, shortened term, the opinion said.

Georgia’s current Constitution has been in effect since 1983. During that time, every single justice save one was first placed on the Supreme Court by gubernatorial appointment.

“The second way by which Justices (and other judges) initially take and hold their offices — by gubernatorial appointment — is not some sort of constitutionally inferior alternative,” Nahmias wrote.

When the cases arrived at the Supreme Court, five of the eight judges recused themselves, leaving substitute judges to assist in weighing the matter.

In her dissent, Judge Brenda Holbert Trammell said the provision in the state constitution allowing for the governor to make judicial appointments was the exception — “constitutionally inferior” — to the provisions that give Georgians the right to elect their judges.

“The majority gives the greater weight to the provisions allowing appointment,” Trammell wrote in her 25-page dissent. “Because I feel that this denies the people the right to elect their Justice as provided by the Constitution, I cannot agree with the majority position.”

Beth Beskin, a former state Republican lawmaker, said in an interview that in the history of the Georgia Supreme Court, only five women have sat on the bench — and one only for a month and four days.

As a 60-year-old woman, she believes her chances of being appointed to a judge position, let alone one on the appellate benches, are slim and her best chance is through an election.

With the May 19 election pushed off to June 9 because of the coronavirus, Beskin is challenging another incumbent justice on the Supreme Court during the June 9 election.

She said the lawsuit she brought helped bring clarity to election law in the state as well as the scope of the governor’s appointment power.

“If a carefully timed dance between a governor and a retiring justice can subvert the ability of Georgians to elect our justices, then that constitutional provision is really just suggestive,” Beskin said. “I do think this decision today means that most people will get on the Supreme Court by appointment.”

The governor’s office did not immediately return a request for comment.

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