Posted by: Patrick Allen Foster | August 7, 2014

Regarding the Plan by (Some) Republicans to Oust Three Justices on the Tennessee Supreme Court

Tennessee Supreme Court building Nashville TN 2013-07-20 003

Today, voters in Tennessee are voting on whether to retain or fire three of the five justices on the Tennessee Supreme Court.

In Tennessee, the justices of the state Supreme Court (and judges of the appellate courts) are appointed by the governor. They serve for eight-year terms, at the end of which they are subject to a Yes-or-No retention election. As Maya Srikrishnan wrote this week in the Los Angeles Times, these retention elections are usually “bland affairs.” But this time, Lieutenant Governor Ron Ramsey* has taken it upon himself to spearhead a campaign to have three of the justices thrown off the court. Srikrishnan:

Tennesseans have been inundated with mailings, vicious campaign ads and more than $1 million of in- and out-of-state money for the battle over three of the fives seats on the high court.

The three justices in question — Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee — have been put on the defensive, battling accusations that they are too soft on crime, especially on death penalty cases, and too liberal for Tennessee.

Wade, Clark, and Lee were appointed by Phil Bredesen, the most recent Democratic governor of Tennessee (in office 2003-2011). That said, I have never really thought of them as liberal (or very political at all, for that matter). The Tennessee Supreme Court is hardly a hot-bed of progressive judicial activism. Just last year, Chief Justice Wade wrote an opinion upholding Tennessee’s Voter ID law — an opinion which Justices Calrk and Lee joined. (H/T: Election Law Blog.) As their supporters and TV ads have been heralding in recent weeks, these three justices have upheld 90%+ of the death penalty verdicts that have come before them. None of them is the reincarnation of William Brennan or William O. Douglas. Tennessee has a Judicial Performance Evaluation Commission, a bipartisan panel that reviews the work of judges and recommends whether they should be retained or replaced. Ramsey, as presiding officer of the state senate, helps appoint the members of that Commission. The Judicial Performance Evaluation Commission has recommended that all three justices be retained.

But they were appointed by a Democrat, and that seems to be reason enough for Ramsey. Tom Humphrey had an article on the subject in the May 4th Knoxville News Sentinel“Opinions mixed on push for GOP judges” — discussing, among other things, how the campaign to unseat the three justices is part of a “Red to the Roots” effort. (The article is behind a paywall, sad to say.) Humphrey:

“Red to the Roots” is a state Republican party effort to have more Republicans elected to local office, including judges in Circuit Courts, Chancery Courts and General Sessions courts. Party officials credit the campaign for having designated Republican candidates for local judgeships in 24 of the state’s 31 judicial districts this year — a record number and a shift from a tradition of nonpartisan judicial contests.

So, Ramsey would like the current Republican governor, Bill Haslam, to have a chance to replace all three justices. (FWIW, Haslam himself has declined to support or become involved with the ouster campaign — although he also has not, to my knowledge, worked against the campaign either.** Haslam’s stance might be described as silent neutrality.) To do this, Ramsey needs to paint the three current justices up for retention as…well, liberal judicial activists. As I’ve indicated above, this is a tough sell to anyone who is reasonably familiar with their judicial output.

Ramsey has been circulating a Powerpoint presentation to paint Wade, Lee, and Clark as soft on crime and bad for business. (See also here.) For lawyers, this presentation is pretty thin gruel — amateurish, even. But we are not the intended audience. Ramsey uses two death penalty cases to make the argument that the Tennessee Supreme Court is “soft on crime,” and he draws attention to cases where the justices (gasp!) upheld damages verdicts by juries against various large corporations (or “job creators,” if we want to hew closely to Ramsey’s language).

In the face of this campaign, the question arises of how the justices should answer Ramsey’s attacks. And this gets us to one of the problems with having elections for appellate judges. I tend to think that, on the whole, judges really should not be in the business of campaigning on the basis of their judicial decisions or defending them after the fact; the opinions should speak for themselves. And, as the Knoxville News Sentinel put it in a July 20 editorial, “There is nothing partisan to be found in their written decisions.”

Back in June, Dahlia Lithwick had a piece in Slate about the Tennessee judicial campaign, in which she points to one of the factors that seems to be motivating Ramsey’s crusade — replacing Tennessee’s Attorney General Bob Cooper. Tennessee is unusual in that the justices of the state Supreme Court appoint our AG. In most states, the AG is elected by state-wide election, or appointed by the governor. (Glenn Reynolds once told us in class that the Tennessee system sometimes gave us a better quality of attorney general, since the Tennessee AG, unlike his peers in other states, is generally not looking to run for higher office. Most elected AG’s, I think, are more or less continuously campaigning for governor.) Bob Cooper is a Democrat, appointed by a court that currently has a majority of Democratic-appointees, but — again — he is hardly a flaming liberal. Sometimes his office may tell the legislature things it doesn’t want to hear — like that their proposed laws are constitutional abominations. But liberal? “Enemy of Job Creators”? Hardly.

BobCooper_slide2

A slide from Lt. Gov. Ramsey’s presentation.

Lithwick:

Ramsey is arguing that he clairvoyantly knows that the Supreme Court as constituted will overturn limits on payouts in medical malpractice and other civil lawsuits that ensure “you’re not going to be punished by some jury that gives you some exorbitant return on the lawsuit.” And he’s also grumpy that in 2011 the Supreme Court vacated the death sentence of murderer Leonard Edward Smith because of ineffective counsel. (Smith ultimately got a life sentence in exchange for the death penalty being dropped.) But beyond the usual bellyaching about the suckiness of some court decisions with which he personally disagrees—or hopes to disagree with someday—there’s all sorts of speculation in the Tennessee press about what Ramsay is really attempting to achieve with this campaign. If even one of the incumbents loses, it will shift the balance of the court to a majority-Republican institution. The Shreveport Times posits that since the state Supreme Court justices pick the state attorney general, the purge may be an effort to create a “Republican” majority on the five-justice court to ensure that there is a newer, more Republican, attorney general. Ramsey pretty much just up and said so at the state GOP’s annual fundraiser in Nashville last week: “Folks, it’s time that we had a Republican attorney general in the state of Tennessee.”

On July 20, the New Sentinel (hardly a liberal paper) ran an editorial — “Partisan politics should be kept out of the judicial branch”:

Opponents claim Cooper is anti-business, though the actions they cite are consumer protection lawsuits that have resulted in Tennesseans recouping millions of dollars from companies engaged in fraud. They also criticize him for not joining the 28 states that challenged the federal Patient Protection and Affordable Care Act — without bothering to note that the challenge failed and that Cooper saved taxpayers’ money and resources by not participating.

Tennessee Republicans have supermajorities in both houses of the state legislature. The governor is a Republican. Both of Tennessee’s US senators are Republicans, as are 7 of our 9 members of the House. Ramsey, in an attempt to turn a very, very Red state even more Red, is undermining judicial independence and the public ideal of a non-partisan and impartial judiciary.

I know that many people see the judiciary as already politicized — as just another results-focused organ of partisan government. I encounter people who think that way all the time online. I happen not to share that view of the American courts, whether we’re talking about the Tennessee Supreme Court specifically or the judiciary more broadly. But I also know, from exchanges in comment threads, that it is exceedingly difficult to convince those people — the ones who see the courts as a results-focused political branch — of the opposing view.

The News Sentinel editorial noted above observed that all three justices “enjoy the bipartisan support of lawyers, including prosecutors, who best understand their work.” A number of Republicans have come out in support of the three justices, including former Justice William Barker (appointed by Republican Lamar Alexander back when Alexander was governor) and Lew Connor (a former judge also appointed by Alexander). And lawyers have, on whole, organized in defense of Wade, Lee, and Clark — which is simultaneously heartening and disturbing. Again, Lithwick, writing in June (emphasis added):

The problem for the justice system is that the only solution to a bad guy with a well-financed attack campaign is to construct a good guy with a well-financed ad campaign. After all, the enduring lesson of the Iowa Supreme Court meltdown of 2010 is that dignified silence doesn’t win elections. And so the Tennessee Bar Association is, in an admirably bipartisan fashion, getting itself organized to finance and promote a counterinitiative to keep the judicial seats as judiciously as possible. That this is bipartisan is good. That it is happening at all (lawyers raising money for the judges before whom they will appear) is a disaster.

In recent weeks the Nashville Bar Association circulated a resolution to members urging them to vote to retain the three justices. A group of attorneys and a former Tennessee Supreme Court chief justice are speaking out in support of the judges. And supporters of the three justices have already raised, as of last week, $600,000 to finance the opposition campaign. That is, notes the Insurance Journal, in rather stark contrast to the 2006 Supreme Court retention race, in which the state Bureau of Ethics and Campaign Finance reported that no money was spent. None.

And that’s the real problem. When judicial races turn into spending races, what suffers most is not Democrats or Republicans, but judicial independence and integrity. As has been exhaustively chronicled by one nonpartisan study after another, judges don’t want to be dialing for dollars from the attorneys who litigate before them, and litigants don’t want to appear before judges who dial for dollars. All of the data shows that the effect is a decline in confidence in the independence of the judiciary and a spending arms race that spirals ever more out of control. That’s the paradox of course: Cynically preying on an unspecified public fear of out-of control judges will ultimate result in actual jurists who are actually compromised, either by taking money they shouldn’t be taking, or making promises and pledges they are in no position to make.

Indeed.

(Full disclosure: in my non-pseudonym capacity, I contributed a pitifully small amount of money to the Committee to Retain Justice Connie Clark. Also, former Justice Penny White — the one who lost the retention election in 1996 — was one of my professors in law school.)

* You may remember Ron Ramsey from an episode where he briefly attained national notoriety when running in the 2010 GOP primary for governor; during a Q&A session at a campaign event in Chattanooga, Ramsey told the audience that the First Amendment’s protections may not apply to Muslims because, he said, Islam is a “cult” rather than a religion. So, yeah, anyway, he lost the race for governor, but he’s still lieutenant governor.
** This could be political savvy and image control — he doesn’t want to give the appearance that he is trying to fire the justices, since he would be appointing the replacements, and he wants to project the image of being above the fray. Or it could be principled disagreement with Lt. Gov. Ramsey’s goals. Also, Haslam and Ramsey were opponents in the 2010 GOP primary for governor; there is, to my knowledge, no great quantity of affection between the two men. Haslam has said (neutrally) that he has a “good working relationship” with Wade, Lee, and Clark.

Image Credits: (1) Tennessee Supreme Court building, Nashville. Photo By Thomas R Machnitzki (thomasmachnitzki.com), July 2013. Used under a CC BY 3.0 license. Source: Wikimedia Commons. (2) Slide from Ron Ramsey’s presentation, via New Channel 5, Nashville.

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