Reflections On My 1st Judicial Election Amid Racial Tensions

Law360 (October 28, 2020, 4:35 PM EDT) --
Robert Benham
Robert Benham
When I, a descendant of former slaves, ran for the Georgia Court of Appeals in 1984, I was the first Black person to run for that seat in Georgia. But if I wanted to win, I was told by some of my advisers, I wouldn't publicize that fact statewide.

Even 20 years after the passage of the Civil Rights Act and Martin Luther King Jr. and John Lewis marching nonviolently to protest discrimination atop our red clay soil, there were counties where I was advised I should not use flyers with my photo. The prevailing wisdom was that if I did that, I would lose.

Then-Gov. Joe Frank Harris, who was also from my hometown of Cartersville, had actually given me a slight advantage on the ballot. He'd appointed me to fill a vacant court seat, but I had to quickly run for reelection to keep it. His appointment gave me the (i) next to my name — meaning I was the incumbent.

While that would give me a boost on the ballot, some of my advisers feared that in certain counties, my African American heritage would be an overriding issue. On top of that, I was facing five challengers in the race — and some of my advisers warned me that if there was a runoff election, the fact I was Black would most certainly become a factor.

Harris even knew I might have to face a racially tense showdown, and told me he wasn't sure if he had done me a favor or not in appointing me. 

My campaign committee and I sat down and looked at a map of Georgia and determined where I could run with my flyers that showed my photo — and where I couldn't. I swallowed hard, because there were certain counties I was advised not to go to. The campaign committee made a conscious decision that we wouldn't do any television coverage with pictures.

We decided where I would go and where I could not go. Then 37 years old, I had to be a realist. I did not spend a considerable amount of time campaigning in southwest Georgia, because local lawyers campaigned for me instead.

In fact, I even had a good excuse why I didn't use photos on those flyers: money. When asked by reporters why my flyers in Atlanta used my photograph but not those in southern Georgia, I said, with a straight face, it was a cost issue. But even though reporters knew that wasn't the case — because with the governor's help, I'd raised more money than any judicial race in state history at that time — no reporter pressed the issue.

The South is a place that I deeply love and is full of contradictions. While some people wouldn't see my race as an advantage, others came out of the woodwork to help me — even people I didn't know.

My ties to the University of Georgia School of Law, where I was the second Black graduate, and my hometown community of Cartersville, where I had opened the first Black-owned law firm, created a biracial coalition that buoyed my candidacy. UGA alumni would swing by to ask for stickers and flyers — they would rally for me across the state, photo or not.

This was the Georgia where I was raised — one where, yes, there were racial differences, but also, one where we helped each other as part of one community. As I ran for office, we showed the best of our state. Harris' father and my grandfather had worked together at Good Year Tire & Rubber Co. It shows how much more people have in common than they realize.

In fact, it was a white lawyer in Cartersville, Jefferson L. Davis (named for the Confederacy's only president), whom I thank for encouraging me to open my law practice in my hometown. He challenged me to stay in Georgia, instead of leaving for California as I had intended.

"We need you here," he said, offering me office space in the law building he owned.

An amazing group of people rallied behind me on that first ballot. I won 58.6% of the vote, beating all five challengers — and avoiding a runoff.

Then in 1989, Harris appointed me to the Georgia Supreme Court, breaking another racial barrier. I later would be the first Black chief justice of that court. This year, in March, I retired from the state's top court, after 34 years on the bench.

In the early years of my judicial career, I typically had a challenger on the ballot, but in my last few elections, I ran unopposed. Specifically, I had a challenger in three of my five races, including for the Supreme Court. I took all my opposition seriously, so I worked hard at it, as I was sure my opponents were serious about it too. Each race I won without a runoff.

As justices, we put on the armor of the law and we go out to slay the dragon of injustice. During the practice of law, I took great pleasure in representing the downtrodden, the put upon and the oppressed, and fleshing out the state's Constitution and the Bill of Rights so it provides protection to all citizens. These are our tasks.

I believe judges should be appointed rather than elected in contested races. But as long as the public wants to see their judges elected, we have no alternative in Georgia. So I remind judges to be cautious and not to take positions on political issues or issues that might come before them. Just because someone asks for your opinion on an issue doesn't mean you have to give your opinion. 

We do have a number of restrictions that prevent judges from taking a stand on controversies. These are the cannons of ethics and laws that help guide us in terms of how we walk this fine line. Judges must not run afoul of these rules, and that's a caution I give those running for judgeships.

And the public should be mindful of the role judges play in a democratic society.

I take a great amount of pride in my tenure on Georgia's highest courts. Judges undertake the task of representing their fellow citizens and assuring they will have equal justice before the law.

Those of us who sit in judgment on our fellow human beings must try, from time to time, to salvage young people, rather than to punish them. As a judge on the bench, I've seen that as my call to service — to give people a chance rather than punish them.

As a lawyer, I took cases dealing with segregation and discrimination, which allowed me to give a voice to the voiceless and the underdogs. Issues ranged from integrating a skating rink in Acworth, to helping two AIDS patients receive treatment at a local medical facility that had been reluctant to provide services for a disease the staff didn't understand at the time.

I undertook the representation of people who had been discriminated against, with the view that the people who discriminate were not bad people. They simply had been led astray on the issue of race. We should look for judges who can see the humanity of the people who end up in our judicial system — from indigents and drug addicts to companies or people who did the wrong thing.

I was one of the early supporters of the creation of therapeutic courts. These are courts that do not rely too heavily on the adversarial system, but they seek to deal with systemic problems such a substance abuse, unfair treatment and everyday life challenges that unfortunately find their way to the court system. Throughout my entire legal career, I've believed that most people want to do the right thing, but emotions of the moment distract them from some of the moral imperatives that are required in a civilized society.

My family was involved in public service for several generations. It seemed like something that was natural for me.

When I was about 12 years old, my dad sat my two older brothers and me down and said, "This is what it takes to be in this family: You will serve your God. You will sacrifice for your family. You will share with your neighbors. And if called upon, you will lay down your life for your country."

Where he got it from, I don't know. But it was a pillar of strength for me as I was growing up. Later, when I was in law school during the Vietnam War, he told me that I should be ready to enlist in the military. "This country has been good to you," he told me. "I expect you to serve if called upon."

Serving as a judge and being a lawyer was a piece of cake compared to what my dad had to endure. He suffered humiliation and discrimination.

One example is from when a new amusement park opened on U.S. Highway 41 in Cobb County, called Storyland. We were so excited to go there. So one day, he took me, my brothers and our Boy Scout Troop there soon after it opened. I ran up to the ticket counter and pushed my money toward the lady behind the window.

She pushed my money onto the ground. "We don't take the [N-word] here," she said.

My daddy, surprised and disappointed, said, "Well, we saw it on TV and the commercial didn't say anything about not letting in Black people."

Gesturing toward me, she told my dad, "You should have known you couldn't come here the day he was born." 

We piled back in the car and drove back in silence. When we got home, he went to his room and cried. It was the first time I ever heard my daddy cry. He was subjected to such terrible humiliation that day, and as a father, there was nothing he could do about it. It was so hurtful — and it's something that stuck in my mind. Every time I drive by that spot on Highway 41, even though it's something else now, I think about it. You just don't know how things like these will affect children.

I couldn't have experienced as a child what he felt as a parent — he was humiliated and there was nothing he could do about it. Such a hurtful experience. But my dad kept fighting for us.

I firmly believe that we should not allow the evils of yesterday to use up the good days that are to come. Whatever was done in the past needs to stay in the past. As a people, we have more things in common than we have that separate us. If we work on what we have in common, what separates us will be less significant.

This is a wonderful country, filled with wonderful people. We need to give people a chance to do the right thing.

And as judges and lawyers, we have the chance to wear the armor of the law and root out injustice where we see it — including giving people another chance. That's how we have an impact on our society as members of the bar — and how we contribute to this wonderful country.



Robert Benham was a justice on the Georgia Supreme Court from 1989 to March 2020, serving as chief justice from 1995 to 2001. He was a judge on the Georgia Court of Appeals from 1984 to 1989.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

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