Is the Pandemic Overshadowing Historic Judicial Appointments?

Along with the rest of his state, it’s a tough time for Gov. Brian Kemp.

In the midst of the new coronavirus pandemic—with COVID-19 hot spots in his own cities of Atlanta and Albany—the governor filled openings on the Georgia Supreme Court and Court of Appeals. In doing so, he put a woman on the Supreme Court: Carla Wong McMillian. Only two governors before him in history have done that. She happens to be Asian American and Pacific Islander. That’s never been done in Georgia.

“Amazing news to uplift us all during these times,” the Georgia Asian Pacific American Bar Association said in a brief note on its website congratulating McMillian “on making history.”

Plus Kemp put an African American woman on the Court of Appeals: former assistant general counsel, district attorney and U.S. attorney and now Macon Judicial Circuit Superior Court Judge Verda M. Colvin. That’s only been done once before on the intermediate appellate court and once before on the high court.

After years of concern expressed about the lack of judicial diversity on Georgia’s courts and how that undermines the quality of justice for all, this might have been a moment for Kemp. But attention was elsewhere. And not just on the pandemic. When asked to talk about the appointments, some of the most outspoken judicial diversity advocates gave mixed reviews.

“Taking nothing away from the appointees, but this was an opportunity for the governor to appoint an African American female to the Supreme Court and he did not take the opportunity to do so,” said Suzanne Ockleberry, vice president and senior legal counsel at AT&T and co-convenor of Advocacy for Action, a political action committee devoted to increasing judicial diversity.

Yes, the governor did appoint an African American woman to the Court of Appeals, but Ockleberry, an African American woman herself, lamented that he didn’t put Colvin on the high court instead of the intermediate court.

When McMillian leaves her current job on the Georgia Court of Appeals, Colvin will move up to replace her. McMillian’s ascension will give the nine-member Supreme Court two women and fill a vacancy created by the retirement of Justice Robert Benham, the first African American to serve on the state’s high court. Colvin will give the 15-member Court of Appeals its second African American woman. In announcing the news on March 27, Kemp noted that Colvin “will become the state’s first African American female appointed to the Georgia Court of Appeals by a Republican governor.”

But Ockleberry was looking at the top court. “One of the concerns is that, with Justice Benham retired, we’ve actually lost diversity on that court rather than gained,” she said. The court now has one African American, Chief Justice Harold Melton. For African American women, Ockleberry added, “That segment of the population is not represented on that court at all.”

She spoke on a conference call with a reporter and Wayne Kendall, also representing Advocacy for Action.

“It’s hard to condemn him for Carla McMillian,” Kendall said. “She is a racial minority. And she is a female.” He added, “And obviously, she’s qualified.”

McMillian has a decade of experience as an appeals court judge. Before that, she was a trial court judge in Fayette County State Court, a partner at Sutherland Asbill & Brennan and a clerk to a federal judge.

Although this was Kemp’s first Supreme Court appointment since taking office in January 2019, he has named judges to superior and state courts, with a stronger showing of women and African Americans than has been typical of recent predecessors.

“Kemp has shown through his previous appointments that he is sensitive to the issue of diversity,” Kendall said.

After the call, he emailed a statement: “Governor Kemp is to be commended for recognizing the value of diversity in his appointments to the bench. We at AFA stand committed, however, to the mandate of the Georgia Constitution that judges are to be elected.”

Advocacy for Action has joined in as an intervenor in the litigation of two aspiring candidates for Supreme Court who are suing to force an election to fill Supreme Court Justice Keith Blackwell’s job. Blackwell announced his resignation Feb. 28—the Friday before qualifying began on the following Monday for candidates in the 2020 elections. But Blackwell said he would stay until November. Two former lawmakers who tried to qualify for the seat and were turned down—Athens attorney and former U.S. Rep. John Barrow, and Beth Beskin, a partner at the Atlanta offices of Freeman Mathis & Gary—have sued, seeking to reinstate the election and reopen qualifying for Blackwell’s seat. They argued the job is not really open until he leaves and should be on ballots as planned for May 19.

Although the leaders of Advocacy for Action want an election, the candidate they would back is not one of the two suing over it. Ockleberry suggested the group would support Alcovy Circuit Superior Court Judge Horace Johnson Jr., who is African American and was one of four candidates who had been planning to run for Benham’s open seat.

Plans changed in December when Benham switched his retirement date from the end of his term, Dec. 31, 2020, to March 1—handing his seat over to the governor to fill.

Rather than being “commended,” as Kendall put it, for the appointments, Kemp became a laugh line on late night television for something he said at a news conference announcing plans to at last declare a statewide stay-at-home order to reduce the spread of the virus. Kemp had been under pressure for a month to take the most extreme measure, but had resisted. In explaining why he waited, he said that he’d learned new information in the past 24 hours that “was a game changer”—COVID-19 could be spread by those who had no symptoms.

“That’s been known for a while,” said a reporter who was kinder than the late show hosts. “Why now?”

Kemp handed the question and the podium over to Department of Public Health Commissioner Kathleen E. Toomey, a medical doctor with a masters in public health. She said the Centers of Disease Control and Prevention guidance had changed in the past 24 hours. “Now is the time,” she said.

On Thursday, the day after the news conference, Toomey issued a clarification.

“For weeks it has been known that people who were positive for COVID-19 but did not have symptoms likely were able to transmit the virus. However, on March 30, Centers for Disease Control and Prevention (CDC) Director Robert Redfield, M.D., confirmed that new data indicates that as many as 25% of individuals infected with COVID-19 remain asymptomatic,” Toomey said in a news release. “Additionally, science also now informs us that individuals who are symptomatic, are infectious up to 48 hours before symptoms appear. This new information tells the health care community, medical researchers, public health and governments why COVID-19 is spreading so rapidly.”

With the courts—and now the entire state—shut down except for essential functions, the pandemic overshadowed the judicial appointments even for those most affected.

“Obviously, there are more important things happening in the world,” social media savvy @JudgeCarla McMillian tweeted, “but I am honored that @GovKemp has placed his confidence in me and look forward to serving this great State on the Supreme Court.”