Nathan Deal, meet Franklin Roosevelt.
During his second term as president, Roosevelt tried to bypass a conservative Supreme Court that had overturned many of his initiatives by proposing the addition of six justices to the court – an attempt to pack the court.
Roosevelt’s scheme proved to be unpopular even within his own party, and he eventually abandoned the idea. It didn’t matter, as it turned out. He was in office so long that he eventually appointed eight of the nine justices on the court.
Deal is taking the same approach as Roosevelt by trying to pack Georgia’s appellate courts, but unlike the former president, Deal is very close to achieving his goal.
Deal has already persuaded the General Assembly to expand the Georgia Court of Appeals from 12 judges to 15 judges – with Deal getting to appoint the three new judges.
He didn’t even have to bother with the formality of introducing a bill and allowing legislators to debate what should have been a serious separation-of-powers issue. Lawmakers simply amended another bill in the closing hours of the session and Deal had his three new judges.
The governor’s next goal is to expand the Georgia Supreme Court from seven justices to nine – with Deal again getting to pick who those new justices will be. We should soon know if legislators will go along with the proposal, 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 their 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. Business groups were especially peeved that the court threw out major parts of the law that made it very difficult for patients to sue doctors who harmed them through malpractice.
That was actually a very conservative ruling. Georgians have enjoyed the right to sue for malpractice ever since the state enacted the 1798 constitution. But to hear business lobbyists talk about it, you’d think the Supreme Court was a bunch of radical community organizers.
Business interests 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. Cobb County judge Grant Brantley was the choice to take out Sears, but Sears crushed him with more than 62 percent of the vote.
In 2006, corporate interests, including Home Depot founder Bernie Marcus, amassed a huge pile of campaign cash to try to defeat Carol Hunstein. That influx of corporate money prompted newspaper columnist Tom Barton to observe that big business was almost 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, Mike Wiggins.
Another factor in Deal’s court-packing effort could be the longevity of people 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, to the court.
If Deal is successful in his court-packing, it will be only the latest development in what has been a little-noted aspect of his administration: Deal has accumulated a hefty amount of additional power in the executive branch.
With the creation of a state charter school commission and the state takeover of 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.
The Legislature already gave Deal the power to pack the state Court of Appeals and will likely authorize him to pack the Supreme Court as well. That would give him unprecedented control 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 may be able to accomplish what Roosevelt couldn’t – which would be an impressive display of political clout.
© 2016 by The Georgia Report