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Tom Crawford: Deal looks to put his own stamp on state judiciary
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Nathan Deal, meet Franklin Roosevelt.

In 1937, President Roosevelt tried to neutralize a conservative Supreme Court that had overturned several of his New Deal programs by proposing to add six new members — he would pack the court with more favorable justices.

Roosevelt’s scheme proved to be unpopular even within his own party, and the court expansion proposal failed.

Deal is duplicating that strategy by trying to pack Georgia’s appellate courts, but unlike the former president, he just may 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 Supreme Court from seven justices to nine — with Deal again picking the new justices. We don’t know yet if legislators will go along with it, but recent history suggests they will give Deal whatever he requests.

Why would Deal want to pack the Supreme Court? The current lineup of justices, after all, has been quite moderate in its rulings, most of which were unanimous decisions.

The Supreme Court has angered business interests, however, by not automatically ruling in their favor whenever cases involving corporations come before them. These 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-governor 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 who included Home Depot founder Bernie Marcus amassed a large pile of campaign cash in their attempt to oust Justice Carol Hunstein. That influx of money prompted newspaper columnist Tom Barton to observe that big business was trying to buy a seat on the court.

“I’m not saying that the judiciary is for sale,” Barton wrote in the Savannah Morning News. “A million dollars doesn’t buy what it used to. But it might be enough to rent it out for special occasions.”

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: Hugh Thompson, Harris Hines and Hunstein were named by Zell Miller, while Robert Benham was the choice of Joe Frank Harris. Deal has only had the opportunity to appoint one justice, Keith Blackwell.

If Deal is successful in his court-packing effort, 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. This happened with the Court of Appeals expansion and the Mercedes-Benz tax breaks.

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.

Tom Crawford is editor of The Georgia Report at gareport.com.

 

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