The news today that former Georgia governor and U.S. senator Zell Miller has died at age 86 prompts us to look back on the mark he left on Georgia's legal system—that of being the first governor to appoint a large number of minorities and women to judgeships.

As a staff reporter here, I wrote the following article, which was published Dec. 28, 1998, a few days before the end of his eight-year tenure as governor.

The Zell Miller Legacy: Diversity on the Bench

When he leaves office next month, Gov. Zell Miller will have appointed 37 percent of Georgia's 287 trial and appellate court judges. Those numbers include four of the 10 judges now on the state Court of Appeals and five of the seven state Supreme Court justices.

Moreover, Miller changed the face of the state's bench, carrying out his pledge to concentrate on diversity.

Twenty-five of Miller's appointments have been black. Forty-two have been women. Eleven have been both, meaning he has added 56 black and female judges to the bench in eight years.

According to Miller's office, Gov. Joe Frank Harris made 76 judicial appointments in his eight years before Miller. They included 10 black and 11 women, totaling 18 black and female judges.

Even before hearing those numbers, attorneys and court watchers say diversifying the bench will be Miller's legacy to the law of Georgia.

“That's a major impact,” says former Attorney General Michael J. Bowers of the judicial statistics.

Criminal-defense lawyer John R. Martin, a harsh critic of Miller when it comes to mandatory minimum sentencing laws, calls Miller's diversifying the bench “remarkable.”

“That is amazing,” says Paula J. Frederick, immediate past president of the Georgia Association of Black Women Attorneys.

Miller looks at his role in diversifying the bench as ironic.

Appointing judges, he says, was “the one aspect of being governor I had never thought about” throughout 16 years of being lieutenant governor.

He says he had lots of plans on taking office—such as starting the lottery-funded HOPE scholarship, but being a nonlawyer, “I had not thought about the judiciary.”

That changed when he took office in 1991, because, along with the keys to the Governor's Mansion, Miller inherited a tricky piece of litigation.

In 1988, state Rep. Tyrone Brooks, D-Atlanta, the American Civil Liberties Union and other plaintiffs had filed a voting rights suit against the state. They attacked the picking of judges in circuitwide at-large elections, claiming the system was discriminatory because blacks typically were outvoted by the white majority and that most judges were therefore white. Brooks v. State Board of Elections, No. CV288-146. (S.D. Ga., filed July 13, 1988).

They also alleged that, since 1964, the state should have been submitting laws creating new judgeships for review by the U.S. Justice Department, under the federal Voting Rights Act.

On the review issue, a special three-judge panel of the U.S. District Court in Savannah agreed with the Brooks plaintiffs. So when Miller took office, the Justice Department was holding in limbo 48 established judgeships and other judgeships created since the litigation began.

“There was a cloud hanging over the judiciary,” recalls Troutman Sanders partner Norman L. Underwood, a former Court of Appeals judge.

Miller asked Underwood to head the Judicial Nominating Commission, which since the days of Gov. Jimmy Carter had screened judicial applicants and recommended shortlists to the governor.

Miller reconstituted the commission, saying he wanted to open up the process for minorities and women. He eliminated four of the five guaranteed slots for representatives of the bar, leaving only the one for the current bar president as an ex-officio member.

Miller allowed the speaker of the House and the lieutenant governor to pick one nonlawyer each for the commission, and he added the attorney general.

The rest of the picks—three lawyers and two nonlawyers—remained Miller's.

According to Miller's 1991 executive order, the commission must always include one woman and one member who is Black, Hispanic, Asian-Pacific American, Native American or Asian-Indian American (Daily Report, Feb. 13, 1991).

“The loss of the bar seats was a bit of a disappointment,” says Albany litigator William E. Cannon Jr., the current bar president, who disagrees with Brooks' argument at the time that the bar's majority control of the commission perpetuated a “good ol' boy network.”

Underwood says there might have been a perception the prior commissions were not focused on diversity.

That said, the first commission, including three black members and one woman, went about its work.

Later that year, two seats opened up on DeKalb Superior Court, which had no black members.

Faced with mixed race and gender shortlists sent by the commission, Miller chose Michael E. Hancock, then chief judge in DeKalb Recorder's Court, and DeKalb State Court Judge Linda Warren Hunter, who were both African-American.

Considering that more than 40 percent of DeKalb County is black but the Superior Court had no black judges, Underwood says, “I think the governor just sensed that's unacceptable.”

Miller won't discuss any specific decisions. But he says his first appointments of minorities and women encouraged more of each group to apply.

Other factors were at work, as well.

Frederick, a deputy counsel to the state bar who made a shortlist for a state court position, notes that women and minorities have graduated from law school in much greater numbers over the years, adding to the available pool for Miller.

In addition, the Brooks case loomed over Miller's picks throughout most of his administration.

In June 1992, after six weeks of negotiations prompted by U.S. District Court Judge Anthony A. Alaimo, Miller and Brooks hammered out a historic settlement. (Daily Report, June 19, 1992)

To end the case, Miller agreed to appoint 30 black judges and adopt the so-called “Missouri plan of judicial selection, in which judges are appointed and then undergo periodic retention elections.

But in March 1994, U.S. District Court Judge B. Avant Edenfield of Savannah refused to approve the settlement, ruling that Attorney General Mike Bowers lacked the authority to make such sweeping changes to the state's judicial election system and that the requirement to appoint black judges would violate the equal protection clause of the U.S. Constitution. (Daily Report, March 9, 1994)

Brooks appealed unsuccessfully for three years, finally dismissing the case last year. (Daily Report, June 23, 1997)

Robert J. Proctor, who has brought numerous legal challenges to affirmative action policies around the state and opposed the Brooks settlement, says, “I think Gov. Miller implemented the settlement anyway.”

Miller came close, appointing 25 black judges. While about 28 percent of Georgia is black, 20 percent of Miller's appointees were black and 33 percent of his appointees have been female.

Brooks says, “I think there's greater trust in the judicial system now.”

Clayton County District Attorney Robert E. Keller says, “The bench must represent a cross-section of society,” and credits Miller for his appointments.

But Proctor, a past chairman of the conservative Southeastern Legal Foundation, says judges should not be picked on the basis of race or gender.

“That whole concept is just abhorrent to me,” Proctor says.

He adds that Miller's picks do not represent the proportions of the number of black or female lawyers in the state.

The state bar keeps records only on gender, says spokeswoman Jennifer Davis. She says 28 percent of the 29,523 members of the Georgia bar are women.

Miller responds, “I don't think I've done anything in my eight years as governor that pleased Bob Proctor.” (Not true, says Proctor, who calls Miller's second term “taxpayer-friendly.”)

Miller adds, “You don't choose anybody because they're a female or a minority,” noting that there were many times lawyers who were considered front-runners for posts because they were women or minorities did not get the job.

Besides, he adds, “I only got very qualified individuals on the shortlists.”

Underwood recalls an opening in a circuit that stretched 90 miles from one end to the other. Miller picked a lawyer who lived in the part of the circuit where there wasn't a judge, and Underwood speculates, “In that case, the factor on the governor's mind was geography.”

Fulton Superior Court Judge Cynthia D. Wright was Miller's executive counsel for his first term.

She says, “When you appoint a judge, you have to factor in a whole lot of subjective qualities.”

“It is not an objective process.”