Some legal experts say Georgia's system of using appointed senior judges raises a constitutional question: Are the voters, who are supposed to elect Superior Court judges, and the General Assembly, which holds the power to create judgeships, being sidestepped when senior judges are permanently appointed?
In June, the Georgia Supreme Court squeaked past an answer to that question, deciding that a permanent senior judgeship wasn't the real issue in the case before the court. The justices noted, however, that a 1998 amendment to the law apparently lets Superior Court judges create a lifetime judgeship and bypass the voters in deciding who fills the seat.
Legal experts are divided on the question.
Richard Reaves, the director of the Institute of Continuing Judicial Education at the University of Georgia School of Law, says he doesn't see a constitutional conflict. All senior judges must have served as least 10 years on the bench, which means they have been subjected to the election process at least once, he notes.
But if a past election is enough to qualify for a lifetime appointment, then what sense does the Georgia Constitution make, countered Michael Mears, the director of the state's new statewide public defender system.
"If you are going to have an elective system, judges must be accountable to the public," he said.
Mr. Mears challenged the legality of senior judges in an appeal for a man facing a death penalty trial that was assigned to a senior judge. He lost the appeal.
In its opinion, the Georgia Supreme Court noted that the senior judge had been appointed only to that specific case. Mr. Mears had argued that a senior judgeship is effectively a lifetime appointment to the bench and unconstitutional because the state's constitution requires judicial elections.
"That was part of our argument. I think that's correct, but the problem is the Legislature is so slow to create judgeships," Mr. Mears said. "But talk about activist judges!"
The term "activist judges" is used to describe judges perceived as making laws as opposed to interpreting them.
Now, judges are creating judgeships, a power the state constitution reserves for the General Assembly, he said.
Laughlin McDonald, of the Georgia American Civil Liberties Union, who has worked on voting-rights cases, said the constitutional requirement for elections conflicts with law that allows permanent appointment of senior judges. It circumvents the election process, he said.
In 1998, when then-state Rep. Roy Barnes, later governor, sponsored the legislation that now allows for permanent appointment of senior judges, then-Rep. John Wiles, R-Marietta, sponsored a bill that would allow people to request that an elected judge preside over a case.
His bill wasn't presented to counter Mr. Barnes' legislation, Mr. Wiles said, but to address complaints from people in his district.
"A lot of judicial decisions are made by people not being elected," he said.
