Gov. Sonny Perdue made the safe and conventional choice when he finally decided who would replace Leah Ward Sears on the Georgia Supreme Court, naming former federal prosecutor David Nahmias as the newest justice.
For a Republican like Perdue, Nahmias has the right kind of credentials: a hard-nosed U.S. Attorney who was involved in the investigation of Centennial Olympic Park bomber Eric Rudolph and whose underlings successfully prosecuted Bill Campbell, one of the sleaziest scumbags ever elected to public office in Georgia. Nahmias has also clerked for conservative jurists like Supreme Court justices John Roberts and Antonin Scalia.
There were some aspects of Nahmias’ background that might have caused some reluctance on Perdue’s part: he was a classmate of Barack Obama at Harvard Law and his parents were immigrants to the United States after World War II (a fact that might still prove troublesome with the GOP’s anti-immigrant base). On the whole, however, Nahmias has shown himself to be a prudent and reasonable lawyer who probably won’t embarrass anyone as a member of Georgia’s highest court.
Nahmias looks even better when you consider some of the other people on the short list sent to Perdue by the Judicial Nominating Commission.
For example, Perdue could have appointed Fulton County Superior Court Judge Craig Schwall, a hotheaded GOP activist who was publicly rebuked by the Supreme Court last year for “clearly improper” actions in a civil case over which he presided.
Schwall has demonstrated that he does not have the proper judicial temperament expected of a judge (you can find a video clip of one of his courtroom outbursts on Youtube).
Another name on the governor’s short list was Stephen Louis A. “Steve” Dillard, an ultra-conservative Catholic and Republican operative who is the founder of both the Macon Federalist Society and the right-wing blog, Southern Appeal. At age 39 he was the youngest and least experienced of the attorneys recommended for the appointment. All you need to know about Dillard’s suitability for the bench is that he is a friend of rightwing blogger and activist Erick “Goat F**king Child Molester” Erickson.
According to Judge Robert Reeves, a member of the Judicial Nominating Commission, there was pressure from the governor’s office to put Dillard’s name on the commission’s short list even though he was considered to be underqualified for the job.
Dillard’s postings — he blogged under the nickname “Feddie” — appear to have been scrubbed from Southern Appeal after he was nominated for the Supreme Court, but he is well-known in right-wing circles for the comment, “Stare decisis is fo’ suckas.” The statement, an awkward attempt to satirize hip-hop slang, means that judges should disregard established legal precedent and make decisions that would be favorable to Dillard’s far-right ideology.
It’s too bad, in a perverse way, that Perdue didn’t go ahead and appoint Dillard. Given Dillard’s background and past statements, he might well have signed off on looney dissents that called for the reinstitution of slavery and the reversal of Brown v. Board of Education. It would have been Sonny Perdue’s longest-lasting “f**k you” to the Democrats he once served with.
But back to David Nahmias. Perdue had one very good reason to pick him over everybody else.
As the U.S. Attorney, Nahmias had a track record of going after political corruption, but seemed to limit those investigative efforts to Democrats who were also African American.
Nahmias’ office did not make any special effort — if indeed it made any effort at all — to look into the real estate dealings and special tax breaks that Perdue has enjoyed during his two terms as governor. You would think that an ambitious prosecutor would look very suspiciously at a governor whose real estate attorney slipped a midnight amendment into a piece of legislation that allowed the governor to benefit from a $100,000 tax break on a piece of property he bought in Florida. A tax break that doesn’t seem to apply to anyone else in the state of Georgia, as far as we can determine. A tax break in a bill that the governor signed into law without bothering to tell the public that he had a personal interest in that piece of legislation.
Was Perdue ever inconvenienced by the U.S. Attorney’s office? I don’t think so. A cynical person might look at the governor’s avoidance of grand jury problems and see a connection there to a subsequent judicial appointment, but really, who would be that cynical?
UPDATE:
Several objections have been made about the references to slavery and overturning the Brown v. Board of Education decision in one of the sentences in this post describing Steve Dillard. It has been pointed out that Dillard and Southern Appeal were co-founders of the blog, Coalition for Darfur, which opposes the genocide that has claimed thousands of victims in that war. The objections are so noted.
Dillard, blogging again under the nickname of “Feddie,” posted a recap and explanation of his “Stare Decisis is fo’ suckas” comment on the Southern Appeal website Thursday evening. “Feddie” wrote:
Before I depart, I do want to clarify my views on stare decsis for the record. And I think the best way to do that is to republish an old post of mine from SA’s blogspot days.
Stare decisis is fo’ suckas!:
In an earlier post today, I noted the following with respect to stare decisis:
For precedent to be entitled to respect it must have a respectable basis. Stare decisis means nothing to me unless the constitutional basis of the decision (or line of jurisprudence in question) is sound. Thus, were I on the Supreme Court, I would vote to overrule Roe no matter how much time had passed. I find it rather interesting that liberals only wave the flag of stare decisis when the decision in question enshrines their value preference into constitutional law (e.g., Roe). I don’t remember hearing anyone in the liberal media carrying on about stare decisis when it came to Lawrence. And I am quite sure that if another justice joins the gang ‘o four (Stevens, Souter, Ginsburg, and Breyer), they will not hesitate to sweep the Supreme Court’s recent federalism cases into the dustbin of jurisprudential history. Although the doctrine of stare decisis has its place in constitutional interpretation, it is not as important as it was to the common law method of judging.
In response, the always brilliant Professor Solum – over at the excellent Legal Theory Blog – opined that “[i]f stare decisis has a role to play in constitutional adjudication, then consistency is key – especially in today’s highly politicized Supreme Court,” and then posed the following questions:
What does Dillard mean by sound? On the one hand, he might mean that prior decisions get absolutely no precedential weight at all. That is, the Supreme Court should decide each case as if it were writing on a tabula rasa. On the other hand, he might mean that decisions should only be given precedential weight if there reasoning is sound, even if incorrect. Thus, for an originalist, decisions based on originalist reasoning might get precedential effect, even if a later court disagreed with the conclusion.
What are Dillard’s views on vertical stare decisis? Are lower courts free to ignore the Supreme Court if they believe that the Supreme Court’s reasoning was not “sound”? What if a lower court believes that the current Supreme Court would view a prior Supreme Court’s reasoning as “unsound”?
When I assert that “[s]tare decisis means nothing to me unless the constitutional basis of the decision (or line of jurisprudence in question) is sound,” I mean, as Solum puts it, “that [a] decision[] should only be given precedential weight if [the] reasoning is sound, even if incorrect [although it would depend on just how incorrect the conclusion was in a particular case].” And there are other decisions where the Court reached the correct conclusion, but employed faulty reasoning in doing so (see, e.g., Brown, the “incorporation” decisions sans Everson and its progeny). In those cases, it would be appropriate, IMHO, to go back and clean up the reasoning to better support the line of jurisprudence in question (e.g., substitute the PorI Clause for the DP Clause as a basis for incorporation). I think the good professor and I would both agree that the reasoning employed in cases is often times, if not most of the time, more important than the actual conclusions reached by the Court.
As for “vertical stare decisis,” that’s an easy one. There is a reason they’re called “inferior courts.” If the Supremes hold that there is a constitutional right to do X, then that “right” must be recognized by the inferior federal courts and state courts as well. The Supremes’ abuse of the rule of law-by rendering utterly ridiculous decisions like Lawrence-does not justify defiance of the Court’s decisions by judges further down the jurisprudential food chain. A judge should not seek to emulate Roy Moore. Indeed, you will note that the context of my stare decisis rant was from the perspective of a supreme-i.e., what I would do if I replaced a liberal justice-like say, Rehnquist-and had a chance to revisit Roe v. Wade. That doesn’t mean, of course, that I oppose a circuit court judge writing a concurrence urging the Supreme Court to reconsider one of its prior decisions. I think that’s fair game, so long as the judge, at the end of the day, recognizes the authority of his superiors.
I hope this clarifies matters.
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