Twenty times since becoming Georgia’s governor in 2011, Nathan Deal has had an opportunity to choose members of the state Supreme Court and Court of Appeals.
Eighteen times he chose a white person. Fourteen times he chose a man.
Primarily because of these decisions, African-Americans on Georgia’s top two courts—and women on the state Supreme Court—will have less influence when Deal leaves office than when he arrived nearly eight years ago.
At the Court of Appeals, however, Deal’s appointments have increased the power of female judges.
Wayne Kendall, a Fayetteville lawyer who tracks judicial diversity in Georgia and advocates for more minority representation on the courts, said Deal was continuing a pattern of “ethnically cleansing the judiciary in Georgia with respect to African-American judges.”
“The trend has been so discouraging that many qualified African-American lawyers will no longer even apply,” Kendall said.
Laurie Webb Daniel, who heads the appellate practice at Holland & Knight, said she had no reason to criticize any of Deal’s specific appointments to the appeals courts, but she added that women and minorities “have not made the progress we should have.”
A spokesman said Deal and administration officials had nothing to say about diversity on the top courts or his recent appointments to them, when the governor eschewed a majority female short list before choosing two white men.
Criticism of Deal’s record on diversity in the judiciary contrasts with widespread credit he has received for leading the creation of more than 140 “accountability” courts around the state, which help mostly nonviolent criminals recover from addiction and other problems without further clogging jails and prisons.
State House Speaker David Ralston recently called for the new $110 million state judicial building to be named for Deal, who was a lawyer and judge before he entered Republican politics. The structure will house the two top courts, which Deal expanded by a total of five jurists in a series of moves that diluted the representation of blacks on those courts and women at the high court.
By the Numbers
When Deal took office, the Supreme Court had two black members among seven justices, for a 29 percent proportion. Now with nine members, the court still has only two black jurists, for a 22 percent share.
From 1992 until 2009, the seven-member high court had two women (29 percent), until Chief Justice Leah Ward Sears retired, and Gov. Sonny Perdue replaced her with now-Presiding Justice David Nahmias. So the Supreme Court had only one woman (14 percent) in Chief Justice Carol Hunstein when Deal took office.
When Deal convinced lawmakers to expand the Georgia Supreme Court to nine members, he added Justice Britt Grant, which increased female power to 22 percent. Grant left this summer to join Atlanta’s federal appeals court, and Deal replaced her with Sarah Warren, keeping the 22 percent proportion intact. But, when Hunstein retires at the end of the year, she will be replaced by Appeals Court Judge John Ellington, who ran unopposed in a May election for Hunstein’s seat.
At the Court of Appeals, the number of African-American members also has stayed at two while the court grew by three judges to 15. That dropped the proportion of black judges from 18 to 13 percent. Deal also tapped one Asian-American judge, so the overall minority influence at the appeals court grew from 18 percent to 20 percent.
At the appeals court, Deal’s appointments doubled the number of women from three to six, pushing the proportion from 27 percent to 40 percent.
That figure surpasses the 38 percent of State Bar of Georgia members who are women, though the number of women is presumably around 50 percent in the overall state population. The bar doesn’t keep racial statistics, but the 2010 census reported that 30.5 percent of Georgians were black.
“It’s important to have statewide institutions … reflect the diversity of the people of the state of Georgia,” said Charles Johnson of Holland & Knight, who has long pushed for more minority representation on the courts.
“It’s not enough,” Rita Treadwell, president of the Georgia Association of Black Women Lawyers, said of the numbers. “Why are we seeing a backward trend?”
Diversity advocates had reason to hope in March, when Randy Evans, who co-chaired Deal’s Judicial Nominating Commission, urged women and minorities to apply for a spate of open appeals court judgeships.
Evans even countered a comment Deal had made in a 2016 interview with the Daily Report: “Is racial diversity more important than excellence and credentials and ability? It’s a factor, but is it the most important factor? I don’t think so.”
Evans said in March that focusing on diversity “isn’t a compromise on quality.”
The JNC recommended a 13-member short list for the GCOA, including four women and four African-Americans. The governor chose two white men, Superior Court Judges Trent Brown and Stephen Goss, and one white woman, Elizabeth Gobeil, the director and an appellate judge for the State Board of Workers’ Compensation.
Then in June, the JNC began developing a short list for the Supreme Court, where Grant was expecting confirmation by the Senate to the U.S. Court of Appeals for the Eleventh Circuit and Chief Justice Harris Hines had planned to retire by the end of August.
The JNC in July recommended nine candidates, including five women, one of whom was African-American—Judge Asha Jackson of DeKalb County Superior Court, whom Deal had appointed in 2012.
Deal appointed Sarah Warren, the state solicitor general, to replace Grant, but he balked on replacing Hines. Last month, he asked the JNC to provide more names to consider, a virtually unprecedented move.
Evans was no longer co-chairing the JNC, as he’d been appointed U.S. ambassador to Luxembourg. Co-chair Pete Robinson and the JNC supplied three more nominees to the governor: two white men, Court of Appeals Judge Charlie Bethel and state Rep. Chris Coomer, R-Cassville, and one white woman, Court of Appeals Chief Judge Sara Doyle.
Bethel had been Deal’s floor leader in the state Senate until Deal tapped Bethel for the appeals court in 2017. Coomer was Deal’s floor leader in the state House of Representatives. Soon after interviewing them, Deal chose Bethel for the Supreme Court and Coomer to replace Bethel on the appeals court.
Evans declined to comment on the governor’s choices, and Robinson did not respond to an email requesting an interview.
Johnson, one of the advocates for more racial diversity on the courts, said he can’t fault the JNC for the governor’s choices. The panel, he said, “gave the governor every opportunity to pick a qualified minority candidate.”
Johnson emphasized he was not seeking a racial quota on court selections, but he agreed with a reporter that there would be little to discuss if court membership approached the Georgia population’s 30 percent black proportion.
Elections and Pipelines
Hunstein, the justice whose retirement in December will bring the state high court down to one woman and six men, recalled that, when she entered the judiciary in the 1980s, most women won judgeships through elections, not appointments.
“The population is ahead of the appointing authorities,” she noted.
Yet when she announced that she would not seek re-election but serve out her term so that her successor could be elected, only one person—Ellington—applied to run for the seat.
Similarly, only two white men—Ken Hodges and Ken Shigley—applied to run for Ellington’s seat on the appeals court.
“I don’t understand it,” Hunstein said.
Hunstein was asked whether she is concerned that women and minority representation on the appeals courts don’t match their proportions in the general population.
No, she said. “Women and minorities have different perspectives,” she acknowledged. “I think it’s important everyone has an equal opportunity.”
“But we work diligently to decide a case based on the law.”
Daniel, Holland & Knight’s appellate chief, noted that, despite making up half of law school classes for decades, women continue to be underrepresented in the higher echelons of law firms and courts.
“It’s not a pipeline issue,” she said. “It comes down to a commitment to diversity.”
Daniel also noted, however, that two women Deal appointed to Georgia’s appellate courts—Grant and Elizabeth L. Branch—have since moved to the federal appellate bench. Women actually have dominated recent appointments to the Eleventh Circuit by Presidents Barack Obama and Donald Trump.
Daniel said she found that trend “most gratifying.”
Around the Southeast, high court diversity varies.
The Florida Supreme Court includes one African-American, one Hispanic and five white members; two are women, and five are men.
In South Carolina, the high court includes one black and six white members; one is a woman, and six are men.
In North Carolina, the high court has three women and four men; two are African-American, and five are white.
In Tennessee, the high court has three women, two men; all are white.
In Alabama, the high court has two women and seven men; all are white.