xMcFadden 04x.JPGApproximately 16 attendees made the snow-ladened trek to the appellate practice section luncheon Nashville, Tennessee, held in conjunction with the State Bar of Georgia’s mid-year meeting. 

The Honorable Christopher McFadden, newly elected to the Georgia Court of Appeals, gave a fascinating talk on the process of campaigning for the appellate bench, the process of moving into the court as a new judge, and his first days as the newest judge on the Court of Appeals.

Participants heard a “nuts and bolts” account of the process of getting elected to a statewide judicial seat and how Judge McFadden integrated lessons learned from his unsuccessful bid in 2008 to get into a runoff and ultimately win a resounding victory in the runoff

Hiring a strategist/consultant

Judge McFadden noted that there are a few people in the state that know how to best run for statewide election. For the 2010 election, he hired one of them. The most innovative contribution was the introduction of what Judge McFadden termed “Robo calls.” The consultant relied upon a list of phone call recipients likely to vote in the runoff election, the use of recorded endorsement messages by key Democratic and Republican figures throughout the state, and strategic times for calling. The bottom line is that robo-calls work, even if some people called him back to complain about them.

Meetings Meetings Meetings

In addition to working with a consultant and executing a set of recorded phone calls to his target audience, Judge McFadden said that he spent a great deal of time going to meetings. Toward that end he devoted a great deal of time to attending civic organization meetings as well as Democratic and Republican party meetings throughout the state. 

However, one of the challenges that came from attending partisan party meetings was maintaining a sense of “neutrality” in partisan meetings. Judge McFadden seemed proud of the fact that the judiciary in Georgia is non-partisan. He noted that there were moments, though few and far between, where members of his audience pressured him to “reveal” his political leanings and threatened to assume things from his choice not to disclose.

The Use of Resources

One key strategy he noted for the use of resources was to raise money and use most of it at the end of the election. The strategy appears to pay off significantly if one considers that he finished second in the general election but finished resoundingly in first in the runoff 


Qualifications Succinctly Discussed

Judge McFadden noted that one of the keys to winning a statewide election court judicial race is to pick a theme, a short phrase or single word and run with it throughout the entire election. In this election, his strategy was to compare his qualifications for the job to all of the others who he believed to be less qualified. “I wrote the book,” a reference to his appellate hornbook, became a campaign theme that was simple, resonated, and encapsulated the whole idea of superior qualifications in a single pithy phrase.  

Starting Out as Judge 

A new judge has to find an office. And any vacancy on the Court creates a great deal of activity as judges move to more desired offices than the ones they currently occupy. It’s a process Judge McFadden called “musical offices on a grand scale.”


Prospects for the Future 

Judge McFadden wants to be proactive as a judge, getting involved in the opinions from the beginning rather than simply signing off on opinions drafted by staff attorneys. He has found that the sheer volume of work necessary as part of a Court of Appeals judge makes it difficult to get in front of the cases the way he would like. He also notes that the amount of time he has to spend own cases as a judge is less than the amount of time he had to spend on drafting briefs for clients.

As a practitioner, I think this news is good. It signals that a brief that is well written, accurate, and that judges can trust is important because the advocates have much more time to spend on cases than the judges have. The brief is very important, which is good news for prepared advocates and opponents of unprepared advocates. 




As I mentioned in a previous post, there are two run-offs for Georgia appellate seats — one for the Georgia Court of Appeals and one for the Supreme Court of Georgia. According to the Atlanta Law Blog, the Blog for the Fulton Daily Report, there are many judicial seats that will be decided by a run-off. Of course, the Daily Report’s audience consists of the Georgia legal community, and not much explanation is necessary there for what the courts do or what’s at stake in those elections. The readership knows the offices and the players involved.

The more interesting phenomenon is the way the media is covering Georgia Judicial Run-Offs. The Newnan Times Herald ran an editorial suggesting that “More Judges” should be selected by appointment. The editorial does not exactly define which ones should be appointed versus elected. But the article suggests that the Run-off is essentially a nuisance and that most voters know neither the candidates nor the issues

While the possibility of a runoff in the Georgia governor’s race did not materialize, every polling place in our state will have to be open on Nov. 30 for two judicial races because no candidate received a majority of the vote a race for the Georgia Supreme Court and another race for an open seat on the Georgia Court of Appeals. … It will costs our state hundreds of thousands of dollars to hold this election in which few voters will participate. This raises another question: Should these judgeships be appointee positions instead of elective positions?

There are many reasons why judges should be appointed instead of elected. In fact I wrote about some of those reasons in previous post. But I’ve never considered that it’s just too darned expensive to have an election or that it is just plain annoying that such an election will require a run-off.

I suppose that most voters don’t care about judicial offices, particularly appellate courts, because most have never had a case before any of those officers. Of course, as all of my clients can attest, those offices have a way of becoming important when your brother, spouse, or loved one has a case before an appellate court. Yet, many of these officers will hold peoples lives in their hands.

An editorial introducing the candidates and discussing what our appellate courts do might have been an interesting angle instead of the one the editorialist chose.

If the public doesn’t know the issues at stake in the election, to what extent does the Fourth Estate bear some of that blame? According to Justice Nahmias, who is in a run-off, quite a bit. He told an Associated Press reporter

We would have liked to get 30,000 more votes to end it yesterday,” he said. “But it’s a three-candidate nonpartisan race toward the end of a very busy and long ballot, and our race got virtually no media attention. Our hope is that the voters will have a very clear choice after they learn about my experience.”

The ones who show up for the run-off will know about the candidates, we would presume. They may actually be related to the candidates. The other media coverage I read about this Run-off either reports the fact that there will be a run-off, the fact that turnout will be low, or expresses what a nuisance this election is. 

The real problem with elections is the possibility that special interests will use judicial seats to advance a particular political agenda, an agenda that threatens the notion of impartiality. I heard an episode of NPR’s On Point today that discussed these possibilities. It’s also an issue that judges call upon attorneys to donate money to political campaigns. Of course, attorneys are a natural constituency, but the whole business is a little strange, particularly when you will end up before that judge eventually or the other guy if you “bet on the wrong horse.”

The appointment system is little better in Georgia. I have appeared before the Judicial Nominating Committe in Georgia to speak on candidates the Georgia Association of Criminal Defense Lawyers had vetted. I felt like the process was a rubber stamp and that my voice was pretty much like the teacher on Peanuts. The appointment system feels even more political when you’re inside it, particularly in a State like Georgia that seems like it will be a one party state practically forever. 

I just wish so much of the media would inform rather than whine about what a bother these elections are. Too much is at stake to continue the current trend

voter.jpgLinda Greenhouse’s post on the Opinionator Blog at the New York Times website is disturbing. She cites a recent Pew Research Center poll where people were asked the current chief justice of the United States. To make the result even more disquiting, the test was multiple choice. And here were the choices:

  1. John Roberts
  2. Thurgood Marshall
  3. John Paul Stevens
  4. Harry Reid

53% of those polled had no idea. 28% chose John Roberts. Thurgood Marshall came in second. That is the result from a poll where the alternatives to Roberts were fairly ridiculous. What’s more, that is the result of a poll involving the United States Supreme Court, which is ever in the public eye.

Now, let’s think about the current election for the Georgia Court of Appeals. Unless you work in the legal profession, have a case where an appeal is pending or is likely, or are a total news hound, you don’t hear much about the Court of Appeals. Yet, when you vote in November, you will have your choice of six possible candidates. The average voter will know as much about those candidates as I know about the choices for public service commission (I vote against anyone, by the way, who has a nickname that makes it onto the ballot in quotation marks. If you go by “buddy” or “skeeter” on the ballot, I’m not voting for you. The PSC race seems to attract people with nicknames)

Often, friends and family will ask me whom I would recommend for appellate seats and choices for other contested judicial elections. Perhaps others in Georgia ask lawyer friends to recommend a choice. But many will not.

Yet, the office of judge is such an important one and hopefully will continue to be in Georgia. Here is the point where I could switch to Public Service Announcement mode and talk about the need for voters to refrain from voting in races where they do not understand who the candidates are. But, instead, I am going to sound undemocratic and maybe snobby. People aren’t going to suddenly start researching judicial candidates.

Which is why I don’t think these decisions should be made by voters. At least initially. I believe an appointment system for open seats and perhaps either a retention election or an election against an incumbent after terms of 10-15 years would be best.

The current system is, at best, a crap shoot and at worst, favors people who have the good fortune of having a name beginning with the letter “A.” That person appears at the top of the ballot and has a big advantage in an election with multiple candidates.

A few years ago, John Grisham wrote a novel about a contested appellate judicial election where some powerful interests group chose a candidate for office. The groups then poured money into the election and ran it the way a candidacy for a higher profile office would be run. They got their guy elected easily.

That fictional story could easily become reality with candidates making “pledges” about what they will do when they get on the bench. Incumbent judges who follow the Constitution into unpopular places could also potentially come under fire.

That is, if the electorate pays attention.