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Not a virus, but still sickening — Supreme Good Ol’ Boy-itis

By Bill Torpy, The Atlanta Journal-Constitution

The uphill battle to get a fair, open election for a Georgia Supreme Court seat just got steeper.

A Fulton County judge ruled this week that the Good Old Boys’ system that bypasses the voters is legal and kosher.

Last week, I wrote about how the state’s Powers That Be — the governor, the attorney general, the secretary of state and a Supreme Court justice — all seemed to work in concert to prevent a Supreme Court seat from going to the unanointed. You know, candidates who must appeal to the voters. Political and judicial insiders hate that.

Late last month, state Supreme Court Justice Keith Blackwell sent a letter to Gov. Brian Kemp saying he would not finish the rest of his six-year term, which ends Dec. 31. Blackwell wants to make money to send his kids to college. And as a former state Supreme Court justice, he’ll earn multiples of the $175,600 he made last year.

But Blackwell is not leaving right away. He’ll depart in mid-November, just six weeks before the end of his term. Why then? The 44-year-old justice must hang on that long to hit 10 years of state time to qualify for a rather sweet pension.

Good for him. Bad for the voters.

By leaving six weeks early, Blackwell will leave a vacancy. And Gov. Kemp, like any good executive, is itching to make his mark on the court.

The secretary of state canceled the May 19 election for Blackwell’s seat on the advice of the attorney general, even though there actually isn’t a vacancy and two candidates were ready to run.

Former U.S. Rep. John Barrow and former state Rep. Beth Beskin were turned away this month when they tried to qualify to run for the seat. They were told state law gives the Guv an appointment once there is a vacancy, as there will be when Blackwell finally leaves office.

Now, don’t call Blackwell a “quitter.” He’s just doing what almost all state Supreme Court justices and most state Appeals Court judges do — they leave before the end of their terms and give the governor a pick. It’s hard to determine why, especially since these arbiters of the law have presumably read the Georgia Constitution, which says voters “shall” elect Supreme Court judges. Except, of course, when there’s a vacancy.

The scheme has become a custom: They got picked by a governor, so they owe it to that office to pick their replacement. Appointed justices almost always get a couple of years on the bench before they have to run for re-election. And sitting state Supreme Court justices never lose. Ever.

This time, however, Blackwell, Kemp and Co. are pushing the envelope by canceling an election and allowing a sitting justice to hang around until his retirement vesting kicks in.

Both former U.S. Rep. John Barrow and ex-state Rep. Beth Beskin sought to run for a Georgia Supreme Court seat being vacated by Justice Keith Blackwell. Both were turned away by state elections officials who said the retiring justice’s seat wasn’t actually open. (Photo by Greg Bluestein)

Photo: Greg Bluestein / AJC

The election is nonpartisan and has in this very partisan time brought together a couple of strange bedfellows. Barrow, a conservative Democrat from Athens, and Beskin, a moderate Republican from Atlanta, have each filed lawsuits to force the secretary of state to hold an election.

Last week, the two turned-away candidates came to argue their cases before Fulton Judge Emily Richardson, who herself was appointed to her post in 2018.

Cary Ichter, lawyer for Beskin, tried logic to persuade Richardson to force the state to hold an election. There is no current vacancy, Ichter said, therefore there should be an election.

“It has to be empty before you can fill it,” he said. “They lack a straight-faced explanation to what happened here. Their argument is simply ludicrous.”

Lester Tate, Barrow’s lawyer, argued, “There’s been a systematic manipulation of the constitution and a gross abuse of power to rob the citizens of their right to vote. … They have conspired to deprive the citizens of Georgia their voice.”

Tate called this a “banana republic” stunt, adding, “Allow this and you’ll see elections (for Supreme Court judges) go extinct.”

Arguing for the state was Russ Willard from the attorney general’s office. He said the state wasn’t disenfranchising the voters. The appointment process was set up in 1983 when a new Georgia Constitution was approved by voters. “The people had their say in 1983 when they adopted this paradigm,” he said.

Richardson wrangled with the arguments, even bringing up a hypothetical in which Beskin and Barrow could run for the seat, one could win, and then Blackwell could step away and Kemp would appoint someone in November, nullifying that election. “There would be a different issue” in that case, she added with judicial understatement.

The judge later ruled against Beskin and Barrow, saying that under state law, the vacancy occurs “when the office holder has resigned and that resignation has been accepted.”

No matter that Blackwell’s robed rear end remains on the bench for months in the future.

Barrow is appealing. Beskin was still deciding.

I called former Chief Justice Carol Hunstein, one of the rare justices who served out her entire term and forced an election, which occurred in 2018. Hunstein was appointed to the Supreme Court in 1992 by then-Gov. Zell Miller.

But she said it was important to have an election for her seat when leaving because she first became a judge in 1984 when elected in DeKalb County. “It was an opportunity for me because as a woman I don’t think I would have been appointed,” she said.

One of the rare campaigns against a sitting justice came in 2006 when a Republican, who was very vocal about his party affiliation, ran against Hunstein with then-Gov. Sonny Perdue’s support. Hunstein won a bitter campaign with almost two-thirds of the vote, a showing that demonstrated that sitting justices are impossible to beat.

Georgia Appeals Court Judge Ken Hodges, who was elected to that court in 2018, said that nonpartisan elections for Supreme Court and Appeals Court seats “are the way to go.”

“There’s clearly politics involved in any election,” he said. But when it comes to governor appointments, “the politics is underground and behind the scenes.”

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