I have represented judges before the Judicial Qualification Commission. I know and respect the members of the JQC, past and present. I followed the legislation seeking to reform the JQC, and I have considered, with interest, the arguments of those opposing JQC reform. In the light of these experiences, I will be voting “YES” on Amendment Three.
As passed, Amendment Three will not change the JQC all that much.
The accompanying legislation provides that the Supreme Court will keep its two appointments. The governor would lose one appointment, but there does not seem to be much fanfare about that. The most significant change would be that the State Bar would nominate persons to be appointed by the President of the Senate and Speaker of the House, whereas the State Bar currently has the power of direct appointment. This change would bring the JQC in line with most government commissions where third parties may not directly appoint individuals to government commissions. Rogers v. Med. Ass’n of Ga., 244 Ga. 151, 153 (1979).
Viewed in this context, Amendment Three and its accompanying legislation will not bring about earth-shattering change. The General Assembly can already impeach judges. See Ga. Const. Art. 3, Sec. 7, Pars. 1-3. It can also use its existing powers of the purse and of legislation to limit courts’ effectiveness. Thus, if it were scheming to punish jurists that displease it, the legislature would not need to work through a third party like the JQC.
The main argument against Amendment Three appears to be a fear that the General Assembly’s appointment (versus confirmation) of JQC members “politicizes” the JQC. According to its critics, legislative appointment of JQC members would undermine the JQC’s current “independence,” which appears to be based on the State Bar’s authority to appoint a majority of the JQC members. This criticism makes two unsupported presumptions: (1) persons appointed by the legislative branch (and recommended by the State Bar) are susceptible to outside influence, or at least more susceptible than those appointed by the State Bar directly; and (2) the legislature will actually seek to improperly influence the JQC. Neither of these positions is supportable, particularly in the light of the State Bar’s continued role and the General Assembly’s existing powers.
Finally, if Amendment 3 passes, the Supreme Court of Georgia will continue to have the final say on whether a judge has violated the judicial cannons or not.
It is understandable that some attorneys might be more comfortable with the State Bar having most of the appointment power to the JQC. But, the State Bar is not going away, and Amendment Three would bring a change of degree and not of material substance. For me, it would seem that expanding JQC input to all elective branches is not a threat to our republican form of government. To the contrary, enhancing the authority of the legislative branch, while maintaining the influence of the judicial and executive branches, diffuses and best protects the independence of the JQC.
The author is a James magazine contributor and an attorney with the Atlanta firm of Robbins Ross Alloy Belinfante and Littlefield.