In 1937, President Franklin Roosevelt tried to neutralize a conservative Supreme Court by proposing to add six new justices who presumably would give him more favorable rulings. Roosevelt’s court-packing scheme was unpopular even within his own party, and the proposal went nowhere.
Gov. Nathan Deal is also trying to pack Georgia’s appellate courts, but unlike the former president, he may be able to achieve his goal. He has already persuaded the General Assembly to expand the Georgia Court of Appeals from 12 judges to 15, with Deal appointing the three new judges.
Deal didn’t have to go through the formality of introducing a bill so that legislators could debate this issue. Lawmakers simply amended another bill in the closing hours of the legislative session, and Deal had his three new judges.
The governor now wants to expand the state Supreme Court from seven justices to nine, with Deal again picking the new members. The Supreme Court has angered business interests by not automatically ruling in their favor whenever cases involving corporations come before them. Business groups were especially peeved when the court threw out major parts of the medical malpractice law that made it difficult for patients to sue doctors who harmed them. That was actually a very conservative ruling; the right to sue for malpractice goes back all the way to the 1798 state constitution. But to hear some people talk about it, you’d think the Supreme Court was a bunch of dangerous radicals for upholding this constitutional right.
Business groups have tried but failed to get rid of sitting justices at the ballot box. In 2004, then-Gov. Sonny Perdue called for the defeat of Leah Ward Sears, the first black woman ever appointed to the state Supreme Court. Sears crushed her opponent by drawing more than 62 percent of the vote. In 2006, corporate interests, including Home Depot co-founder Bernie Marcus, amassed a large pile of campaign cash to try to defeat Justice Carol Hunstein. That influx of money prompted Savannah Morning News columnist Tom Barton to observe that big business was trying to buy a seat on the court. Hunstein piled up 63 percent of the vote to trounce her opponent.
Another motivation for Deal’s court-packing effort is the longevity of lawyers who are appointed to the high court. Four of the current justices were appointed by Democratic governors, while Deal has only been able to appoint one justice.
If Deal succeeds in his judicial initiative, it will be the latest wrinkle in what has been a little-noted aspect of his administration: Deal has consolidated a tremendous amount of power in the executive branch. With the creation of a state charter school commission and the state’s ability to take over low-performing schools, Deal has essentially become the state school superintendent. Deal could also be seen as a shadow speaker of the House of Representatives, able to get his policy initiatives approved without even bothering to introduce bills. Deal now has the authority to expand the state Court of Appeals and will likely be allowed to expand the Supreme Court as well. That would give him unprecedented influence over the judicial branch of state government.
Roosevelt was one of the most powerful presidents ever seen in this country, but even he couldn’t pack the Supreme Court. It looks like Deal will accomplish what Roosevelt couldn’t—which would be an impressive display of political clout.
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