Bookman: Why can governors appoint justices based on their ideology, but voters can’t?

Under the Georgia constitution, voters, not governors, are supposed to have primary responsibility for electing judges. But justices have found a way around that provision. Stanley Dunlap/Georgia Recorder

In his campaign for a seat on the Georgia Supreme Court, attorney John Barrow is daring to challenge the hypocrisy of a judicial system that claims to be apolitical but is anything but. He is doing so by making it clear, to the voters and to everyone else, that he is a supporter of a woman’s right to choose.

By custom, judicial candidates aren’t supposed to make such statements. They are supposed to pretend to be apolitical, so the public can believe that judges have no agenda and rule only on the facts and the law. That’s a pleasant fiction, but dangerously naïve, as we’ve seen quite clearly at the federal level. Time and again, nominees pledge their independence in Senate confirmation hearings, but once in office they behave politically. 

By bringing up abortion in his race against incumbent Justice Andrew Pinson, Barrow has drawn criticism and a warning from the state Judicial Qualifications Commission, which frowns upon judicial candidates who express political opinions. Barrow’s honesty has also drawn the attention of Gov. Brian Kemp, who appointed Pinson to the state’s highest court two years ago.

This week, Kemp committed $500,000 of his own campaign funds in support of Pinson’s election. The governor also cut a political ad on behalf of Pinson, explaining it as a defense against putting “partisan politicians in the courtroom.”

That’s a clear reference to Barrow, a former Democratic congressman. However, two current justices on the state Supreme Court, both of whom were appointed by Republican governors, also had significant political careers before joining the bench, so being a politician has not exactly been considered a disqualification.

And if Kemp is truly concerned about partisan politics in the court system, he has chosen a strange way to communicate it. In the TV ad he cut and paid for on Pinson’s behalf, he lauds the incumbent justice as “a conservative voice we can trust,” which itself is a barely coded political statement that Pinson is pro-life. 

That stance is not surprising, because we know Kemp to be a strong pro-life advocate. As such, would he ever appoint someone to the state Supreme Court who had a pro-choice record? No, he would not. 

So why is it “apolitical” and perfectly fine for a governor to appoint only justices who share his position on abortion, yet somehow improper for voters to elect judges on that same criteria?

In October, the Georgia Supreme Court ruled 6-1 in favor of a state law banning abortions after six weeks. It is no accident that all six of the justices voting in favor of the ban, including Pinson, were first appointed to the court by Republican governors. The single justice who thought the ban violated the Georgia Constitution is also the only justice who was first elevated to the court by voters, not appointed by a GOP governor.

It’s also important to point out how supposedly apolitical justices themselves play an important role in ensuring ideological continuity in the state’s top court. Let me explain how it works:

Under the state constitution, voters, not governors, are supposed to have primary responsibility for electing judges. But justices have found a way around that provision, using a loophole that strips that power from voters and invests it instead in the governor. 

Suppose a justice has decided to retire or not seek re-election. That creates an open seat, and you’d expect candidates to emerge to seek that open seat, with voters making the final decision. 

However, if a justice times it right, if he or she resigns before their six-year term is officially over, suddenly that open seat vanishes. Instead, a vacancy is said to have occurred and the governor, not the voters, gets to fill that vacancy. 

The election that would have filled that empty seat is then postponed for two years, ensuring that the governor’s appointee is a full-fledged incumbent by the time he or she has to face the voters. And incumbent justices rarely if ever lose. 

For Barrow, that system has proved frustrating. There’s no way he would ever be appointed to the court by a Republican governor, so his best hope of becoming a justice is by competing for an open seat.

In 2019, Barrow was putting together a campaign for what was expected to be an open Supreme Court seat with the retirement of Justice Robert Benham. But Benham resigned early, Kemp got to name his replacement, and the election was canceled. 

In 2020, Barrow was again eying an expected open seat on the court. But again, Justice Keith Blackwell resigned early, the governor got to name his replacement, and again the election was canceled. 

In 2022, Barrow was ready to try a third time, but was foiled again when Chief Justice David Nahmias resigned early, again allowing the governor to name his replacement and again canceling the election. (Nahmias himself had been appointed to the high court that very same way.)

The man appointed to fill that seat was Andrew Pinson.

So to review, it’s OK for a governor to appoint justices based on their ideology, but voters can’t be allowed to do so. It’s wrong to inject partisan politics into judicial elections, but OK for a governor to tout a candidate as “a conservative voice we can trust.” And we should respect the independence of the judiciary, even as members of the judiciary game the system so that voters never get a chance to fill an open seat.

I’m no Supreme Court justice, but that just don’t seem right.

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