State high court shifts to the right
Georgia’s Supreme Court will move to the right today when its newest justice, David Nahmias, is sworn in. The question is how, and how far.
Nahmias will certainly make the state’s high court more conservative just by replacing former Chief Justice Leah Ward Sears, a reliably liberal jurist. Though judges sometimes buck the conventional wisdom about them, the expectations of Nahmias are that the longtime prosecutor will be a judge in the mold of Laurence Silberman, Antonin Scalia and John Roberts, conservative jurists for whom the Georgia native worked after graduating from Harvard Law School.
The new justice himself says that’s a reasonable expectation. “In general,” he told me shortly after stepping down as U.S. attorney in Atlanta to assume his new office, “my judicial philosophy … is very much consistent with theirs.”
But what governors (and, at the federal level, presidents) often seek in appointees are judges who will have outsized influences on the courts they join. Recall, for example, the questions about whether Sonia Sotomayor would simply be a liberal justice replacing another liberal justice on the U.S. Supreme Court – or whether she might be able to win other members of the court to her side in closely fought cases.
That question of influence has people buzzing about Nahmias.
“His demeanor is polite, considerate, and firm,” wrote former Homeland Security Secretary Michael Chertoff in a letter recommending Nahmias’ appointment. “I have no doubt that judicial colleagues would find him pleasant – and persuasive.”
Another of his supporters, past Attorney General John Ashcroft, predicted Nahmias “would become an intellectual leader of any court.”
The other six justices on the Georgia Supreme Court, however, are hardly neophytes: They’ve served for more than 14 years on average. So, Nahmias might choose at first to go with the flow on a court known for its emphasis on cordiality.
Eventually, though, expect Nahmias to apply the lessons he learned while clerking for Silberman and Scalia (he worked with Roberts in private practice). The opportunity to watch such forceful personalities work behind the scenes at the highest levels will help make up for his lack of previous experience as a judge.
One factor in Nahmias’ personal influence will be the types of cases the court hears. A former U.S. attorney and assistant U.S. attorney general, Nahmias will be the only former prosecutor on the court. So he may have instant credibility with his fellow justices on criminal cases.
One might assume that his prosecutorial experience would lead him to have more empathy – to use a buzzword from Sotomayor’s nomination – for, say, police officers and how a given ruling might hamper them in the future. Yet, perhaps counterintuitively, he also voices a deep appreciation for defendants’ rights.
“Hopefully I have a sense of what matters, of where the justice and injustice is done [in a criminal case], and what’s tactical” on the part of law enforcement and prosecutors, he said.
Criminal defendants, he noted, were among the classes of people whom our Founding Fathers sought to protect. “I think those [rights] need to be strictly enforced regardless of what the majority thinks at any given time,” he said.
It’s part of what he describes as “originalist” judicial philosophy; others would call it judicial restraint. “My fundamental view,” he says, “is that you apply the law and policy considerations are not relevant.”
Or, put another way: “Laws don’t change over time because judges change them. If they change over time, it’s because the democratic process changes them – or decides not to.”
That disinclination to legislate from the bench will help Georgians know that, when our elected officials settle on a policy, our judges won’t try to remake it to their liking. That’s all that any of us can ask of them.
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28 comments Add your comment
Churchill's MOM
September 3rd, 2009
6:37 am
Finally we can blog. You need to learn that just because a person calls theirself a Republican does not make them a Conservative. How about writing about the failures of our 2 Socialist Senators.
catlady
September 3rd, 2009
7:03 am
“In general,” the new justice said, “I would say I hearken back to those of the Founding Fathers. No women, blacks, or unlanded need expect for their vote to count.” Nah, he didn’t really say that, although some would hope he would. Perhaps he will turn out to be a “nonpartisan” judge.
jt
September 3rd, 2009
7:52 am
Just another overpaid lawyer that the American working poor has to carry on their backs for life.
Road Scholar
September 3rd, 2009
7:57 am
JT: So how would you assign judges to the Ga Supreme Court? You must pay for competency and experience.
s
September 3rd, 2009
8:19 am
J Dobson – what the bleep does all thatt have to do with the price of tea in China?
Mort Merkel
September 3rd, 2009
8:28 am
It means that the former employees will no longer be able to afford tea, so the Chinese tea exporters will lower the price .000000000000000000001 of one cent, in order to compensate for the decrease in sales.
David Axelfraud
September 3rd, 2009
8:39 am
Kyle, welcome to the AJC blogs. Look forward to your opinions.
David Axelfraud
September 3rd, 2009
8:41 am
Not to change the subject, but Obamas about to get an even ruder wake up call. Sarah Palin was dead on when she brought up death panels in the health care bill.
Sentenced to death on the NHS
Patients with terminal illnesses are being made to die prematurely under an NHS scheme to help end their lives, leading doctors have warned.
http://www.telegraph.co.uk/health/healthnews/6127514/Sentenced-to-death-on-the-NHS.html
Morons
September 3rd, 2009
8:41 am
Overpaid? You realize that we just got pretty much the most brilliant young lawyer in this state appointed to our Supreme Court, right? Look at this man’s biography – it is unreal. He has devoted pretty much an entire professional career to public service. Do you have any idea how little he is going to get paid for the thankless job of being an appellate judge compared to what he would make as an equity partner at one of the big law firms in town? Lets just say he is taking a paycut of nearly a million dollars a year. We should feel fortunate that he has agreed to serve us in this fashion rather than take a few years off from public service to rake in the big bucks.
Edwina
September 3rd, 2009
8:46 am
Turn to the right!
Cutty
September 3rd, 2009
9:02 am
“One might assume that his prosecutorial experience would lead him to have more empathy – to use a buzzword from Sotomayor’s nomination – for, say, police officers and how a given ruling might hamper them in the future.”
So empathy is good when its coming from the right and it favors law enforcement? D*mn the people huh? Thought some of you decent conservatives would’ve learned in the last 8 years that everything a republicans does is ‘right’.
William
September 3rd, 2009
9:10 am
I am glad to see the whackos from the Atlanta area do not have the power to push through a lberal judge like the liberals in washington can do.
William
September 3rd, 2009
9:11 am
everytime I post here I get a virus alert…do any of you experience this?
David Axelfraud
September 3rd, 2009
9:15 am
William, buy a mac.
jconservative
September 3rd, 2009
9:16 am
Disinclined to legislate from the bench? If he is learning from Scalia then he is learning from one of the most prolofic “legislators from the bench” in SCOTUS history. I still maintain that Scaalia is the best legislator in DC.
T-Bo
September 3rd, 2009
9:31 am
We certainly don’t want judges who legislate from the bench — after all, that’s what happened in “Bush v. Gore” and we’ll be suffering the consequences of that judicial activism for a long time to come. Now, tell me again which justices were the majority on “Bush v. Gore”?
Will
September 3rd, 2009
9:42 am
I wish Justice Nahmias well and pray that he will judge from the law and not from some favored republican philosophy and/or dictate.
Although not subject to confirmation as are Supreme Court justices, I understand and accept that elections have consequences and one of the most important is the appointment of judges. Although I would not have chosen Justice Nahmias, I certainly was hardly surprised nor will I hold my breath and pout that the republican governor of Georgia has chosen a republican Justice that is most likely to judge as a republican governor would hope.
The cycle of partisan votes for Supreme Court justices is complete and will probably never change in my lifetime. Most democrat senators, including then Senator Obama, refused to confirm President Bush’s last two nominees, both well qualified, because they were not democrat Justices and most republicans did the same thing with Justice Sotomayor. They will also do the same thing with President Obama nominees to replace Justices Stevens and Ginsberg, both of whom will almost certainly retire before the next presidental election.
As a matter of fact, you can go ahead and fax this press release to Senator Chambliss for future use: “Today President Obama nominated (fill in the blank with any name)to replace Justice John Paul Stevens, who announced his retirement last month. In reponse, US Senator Saxby Chambliss noted that he was deeply troubled by the liberal activist record of (fill in with any nominee that President Obama would offer). According to Senator Chambliss (you could also replace his name with almost any republican senator), “while I remain uncommitted at this point, (fill in the blank)deeply troubles me as I see his/her judicial record as one that will continue to lead the country down the road to (fill in the blank here – socialism, communism, murder of the unborn, being overrun with illegal immigrants, justice through identity politics, empathy – I am certain you can think of many more terms to use in this blank).
President Obama will most likely have the opportunity to protect the four vote democrat wing of the Supreme Court and the four vote republican wing of the Supreme Court is young and healthy enough to be untouchable for the foreseeable future. That leaves Justice Kennedy, who appears to be about .75 republican and about .25 democrat.
Unless he retires, the Supreme Court will remain 4.75 republican and 4.25 democrat even if President Obama is re-elected. Only if he is re-elected and then followed by another democrat will the Court become majority democrat.
In Georgia, republicans are likely to control the General Assembly and the Governor’s office for the foreseeable future and almost any judicial choice will reflect this partisan political philosophy.
What’s that you say, democrats would do the same thing if they were in control? Of course they would (and did). You don’t really think there is a dime’s worth of difference between democrats and republicans when it comes to partisan opportunity do you? Elections have consequences.
Your morning jolt: Chapman joins GOP race for governor | Political Insider
September 3rd, 2009
9:51 am
[...] Kyle Wingfield ponders a shift to the right by the state’s high court. [...]
Billy Bob
September 3rd, 2009
10:00 am
David Nahmias is an excellent choice for the Georgia Supreme Court. His selection provides clear support for the role, and rule, of law in Georgia.
kwingfield
September 3rd, 2009
10:14 am
Cutty: I didn’t use “empathy” approvingly there. If the law says a defendant has a particular right in the course of a trial, and a judge were to rule against the defendant and in favor of law enforcement out of empathy, that would be wrong. And David Nahmias’ comments indicate he wouldn’t do that, even if some people will expect that of him.
President Obama’s comments about “empathy,” on the other hand, suggest that under certain other circumstances he would find it appropriate for a judge to rule based on empathy. That’s the difference.
Redneck Convert (R--and proud of it)
September 3rd, 2009
10:45 am
Well, long as this new judge don’t throw out the Death Penalty or rule against big business or rule in favor of someone that got convicted or overturn a State Law I’m all for him. I’m sick of these libruls on GA courts. Both of them.
I’m awful glad to see this Wingfield finally letting people blog. For awhile I thought he was ducking us, sort of like the 115-lb. weakling hiding behind the teacher in the school yard.
Have a good day everybody.
kwingfield
September 3rd, 2009
11:09 am
J Dobson and Churchill’s MOM: It’s a possible copyright violation to publish entire articles from other news outlets here, not to mention that it makes the blog hard to read. So I’m taking down your posts and providing links here:
Focus on the Family story that J Dobson posted: http://www.google.com/hostednews/ap/article/ALeqM5gpz_Jyp-YYgaZX6ldhX23l4ZH44gD9AFEPGG0
Gail Collins column on Sarah Palin that Churchill’s MOM posted: http://www.nytimes.com/2009/09/03/opinion/03collins.html?em
In the future, please provide the links yourselves…I’m not going to keep doing this for you (or other posters).
William
September 3rd, 2009
11:25 am
David Axelfraud
September 3rd, 2009
9:15 am
I am too poor! I do not have a job in Atlanta making the big bucks.
David Axelfraud
September 3rd, 2009
11:39 am
William, then maybe you should lay off the blogs and get a job.
jt
September 3rd, 2009
12:00 pm
Road Scholar
September 3rd, 2009
7:57 am
JT: So how would you assign judges to the Ga Supreme Court? You must pay for competency and experience.
The first thing that I would do would be to end the ridiculous requirement of a judge to be a lawyer.
A few states still allow normal, honest people to be judges.
Just because a person took the easy way out in college by studying law shouldn’t automatically qualify him for being a judge.
And through a lifetime carreer of proscecuting, how do you measure competency?
No matter how much the state bar tries to brainwash you, it doesn’t take a rocket scientist to know and memorize precedents and legal codes. 98% of lawyering is just knowing how to kiss judges arses and obeying their silly protocol.
Trust me, Joe the Plumber could and would do a better job. And be more honest.
Elephant Whip
September 3rd, 2009
12:10 pm
Re: Nahmias- one thing to cause optimism toward his ability to remain impartial is his refusal to retry Brian Nichols under the federal law against killing federal agents.
Re: “Legislate from the bench” language: I hope you do not mean he should value legislation over the Constitutions of Georgia and the United States. Review of legislation as it has been applied by law enforcement, agencies, and lower courts is a Supreme Court Justice’s role most of the time in the highest appellate court. If the law were not confusing (or the actions of state agents not questionable), then the Supreme Court of Georgia (or the US Supreme Court) would not take the case. The only time either political party calls it “legislating from the bench” is when the court finds that proper application of the law contradicts that party’s ideology.
David Axelfraud
September 3rd, 2009
12:22 pm
Liberals are so nice. They are so nice that they bite fingers off of 65 year old health care opponents. HELLO NAZIS!
Finger bitten off during California health protest
AP
THOUSAND OAKS, Calif. – California authorities say a clash between opponents and supporters of health care reform ended with one man biting off another man’s finger.
Ventura County Sheriff’s Capt. Frank O’Hanlon says about 100 people demonstrating in favor of health care reforms rallied Wednesday night on a street corner. One protester walked across the street to confront about 25 counter-demonstrators.
O’Hanlon says the man got into an argument and fist fight, during which he bit off the left pinky of a 65-year-old man who opposed health care reform.
A hospital spokeswoman says the man lost half the finger, but doctors reattached it and he was sent home the same night.
Grady L. Cornish
September 3rd, 2009
5:48 pm
Perdue’s appointment of Nahmias raises questions
Sonny Perdue began his second term under a cloud of allegations pertaining to questionable land deals in Houston County, Florida, as well as a customized tax break for the Houston County transaction.
Formal complaints about his misuse of the Governor’s office were quickly dismissed by the Republican controlled General Assembly. The fact laden complaint was then submitted to the office of the U.S. attorney for the Northern District of Georgia and nothing has been heard of it since. That office was headed by David Nahmias.
Comingle Perdue’s steadfast refusal to answer lingering questions about his actions with his appointment of Nahmias to the state’s highest court with no prior judicial experience and questions are bound to come to mind.