By J. Randolph Evans
2010 was a watershed election in Georgia politics. Republicans swept
every state constitutional office and took firm control of the Georgia
Senate and House.
2012 will be a watershed election in Georgia for a completely different
reason. While the Presidential election will certainly impose a healthy
level of partisanship in the November General Election, the 2012
nonpartisan judicial elections will also be big.
In 2012, the nonpartisan judicial elections will be moved back from the
General Election in November to the Primary Election in July 2012.
Basically, judicial candidates will appear on both the Republican and
Democratic Primary ballots. If a runoff is required (and it probably
will), it will be held in the Primary Election runoff in August 2012.
Four of the seven Georgia Supreme Court Justice seats will be determined
in 2012. The mere fact that a majority of Georgia’s highest court is at
stake confirms the importance of the 2012 election on the future of
Georgia.
The court can decide whether (and if so, how fast) the Governor’s and
the Speaker’s legislative initiatives move forward. As illustrated by
the court’s decision to strike down the commission that charters schools
or its decision holding caps on excessive verdicts in medical
malpractice lawsuits as unconstitutional, the Georgia Supreme Court can
be the end of even the most popular legislation in the most difficult
times.
Generally, the court is considered to have a slightly conservative tilt
with many key decisions (like the charter school decision) decided by a
4-3 vote. The four justices whose terms end next year reflect a mix
from all sides (the right, the left, and the middle) of that split.
Given Georgia’s solid red state status, especially in Presidential
election years, this change in the way Georgians elect judges
substantially levels the playing field for Democrats running for
election as a Georgia judge. If there are fewer contested Republican
primaries (because most are incumbents), then the change will actually
favor Democrats running for judge.
Anything can happen in judicial elections, especially since they have
been moved from the General Election to the Primary Election. After
all, the last three contested Georgia Supreme Court elections have been
anything but routine.
In 2004, then Chief Justice Leah Sears won reelection after both
political parties weighed in heavily on behalf of candidates in the
race. In 2006, Chief Justice Carol Hunstein won reelection in a bitter
contest in which the business community weighed in with significant
contributions to her opponent Michael Wiggins. In 2010, Justice David
Nahmias won reelection after being forced into a run-off by a candidate
who refused to campaign.
Basically, it is very difficult to defeat an incumbent Georgia Supreme
Court Justice even in the most unusual of circumstances. So far,
partisanship (2006), money (2008), and populism (2010) have not done the
trick.
Routinely, incumbent justices win, even in the most trying of
circumstances. Yet, the judicial races in Iowa in 2010 prove what can
happen if there is a concerted effort with all three elements
(partisanship, money, and populism.) Three of Iowa’s incumbent supreme
court justices lost after participating in a unanimous decision striking
down the state’s same-sex marriage law.
Not surprisingly, the normal gravitational pull of challengers is to
avoid an incumbent. In 2012, challengers will get that opportunity.
Presiding Justice George H. Carley has announced that he will not seek
reelection in 2012, leaving the seat to be filled by Georgia voters. He
will be 74 next year. (Justices who stay on past 75 effectively lose
their pensions.)
Presiding Justice Carley’s retirement opens up a slot on Georgia’s
highest court without an incumbent. This opening should draw most
credible candidates away from the other three incumbents on the ballot.
Notably, if Justice Carley’s seat was not tempting enough, at least one
Court of Appeals seat without an incumbent may open up for ambitious
lawyers interested in an appellate judgeship.
As a consistent member of the conservative block, Justice Carley’s
departure could impact the balance of the court. As a result, the
stakes will be high as the plaintiffs’ trial bar, business interests,
criminal defense attorneys, prosecutors, social conservatives, liberals,
Republicans, Democrats and Tea Partiers weigh in.
In addition to Justice Carley’s seat, Chief Justice Carol Hunstein,
Justice Hugh Thompson and Justice Harold Melton will face election in
2012. Like Chief Justice Hunstein, Justice Thompson was appointed by
Governor Zell Miller. Justice Melton was appointed by Governor Sonny
Perdue.
Two Court of Appeals appointees by Governor Perdue will also be on the
2012 ballot – Judges Keith Blackwell and Stephen Dillard. Four other
Court of Appeals judgeships will also be decided in 2012.
In all, ten appellate judgeships will be decided in 2012. It will be
another watershed election.