Efforts to Oust Tennessee Supreme Court Justices Raise Questions

July 30, 2014

Tennessee Supreme CourtThe state Supreme Court elections in Tennessee are getting ugly.  And they are getting national attention. Three of the state’s five Supreme Court justices are standing for retention election this year, which means voters can choose to “retain” or “replace” them. Appellate judge retention elections in Tennessee typically come and go without much of a campaign and with little fundraising and spending. This year is different.

Despite being overwhelmingly recommended for retention by a bipartisan Judicial Performance Evaluation Commission and receiving broad support from bar associations, prosecutors, and the Fraternal Order of Police, an organized and well-funded effort to replace the justices has emerged. Supporters of the justices charge that the effort is purely motivated by partisan politics – the three justices at issue were appointed by a popular centrist Democrat governor, Phil Bredesen –  and replacing any one of them would ultimately shift the Court to become majority Republican.

The effort to oust the justices is reportedly being heavily funded by out-of-state groups, including by the political arm of the billionaire conservative Koch brothers. Locally, the effort is reportedly being led by a politically ambitious auctioneer turned politician who serves as Speaker of the state Senate and who has vowed to tell no more truth than necessary to defeat the justices (“If I’m running for election do I tell both sides? No, I tell what I think will enhance my election.”).  The justices opponents have pushed themes in their advertisements that the justice’s supporters say bear no relationship to the facts, including that the justices are somehow responsible for Obamacare (the issue has never been presented to the state Supreme Court) and that the justices are “soft on crime” (the court has upheld about 90% of the death penalty sentences it has reviewed). Because the Judicial Code of Conduct retrains the justice’s ability to speak publicly about cases, the justices cannot respond directly to the some statements made by the groups working in the open or in the shadows to oust them.

The Tennessee Plan

Tennessee’s appellate judges, including Supreme Court justices, are chosen through a merit selection plan – The Tennessee Plan – that blends executive appointment and accountability to voters. When an appellate court vacancy arises, a bipartisan commission conducts an open application process where any qualified applicant can seek the office. The commission holds public sessions where citizens speak on behalf of candidates and ultimately recommends a three candidate slate from which the governor would select one candidate. If the governor is unsatisfied with the slate, the commission is required to present a new panel. After being appointed, during the first ensuing general election the appellate judge stands for retention election and, if retained, would stand for retention elections every eight years.

Some have criticized the Tennessee Plan as violating the Tennessee Constitution’s provision mandating that appellate judges must be “elected.”  The Supreme Court, through specially sitting members and not the regular justices selected through the Tennessee Plan, has repeatedly found that the Plan is constitutional. Nevertheless, there will be a referendum in November 2014 that would amend the constitution expressly to authorize the Tennessee Plan.

Money and Politics in the Judiciary

The justices’ supporters see danger in the effort to oust the justices, not just for the current court, but because the organized and well-funded effort has injected hundreds of thousands of dollars and hard-ball partisan politics into a process that was designed to be largely insulated from those forces.  Spending by all sides has reportedly topped $500,000 so far. The justices have been traveling the state for months attending bean suppers, mule parades, and, most disturbingly to some Tennesseans, campaign fundraisers.

Supreme Court justices seeking contributions from lawyers or businesses who might have cases in front of the high court makes some members of the bench and bar uncomfortable. The justices’ supporters argue that because the Tennessee Plan largely removes the need for expensive political campaigns for appellate judgeships, Tennessee has avoided the difficulties – sometimes involving allegations of criminal conduct – that states with contested, expensive appellate court campaigns have experienced. Opponents argue that, notwithstanding the massive flow of cash into the process, the political accountability enforced by a robust campaign serves to keep the justices in line with the current dominant political philosophy in the state.

With confidence in government institutions, including the courts, waning – one recent poll has confidence in the U.S. Supreme Court at an all-time low – all sides should agree that preserving the integrity of our courts should be the priority.

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The Tennessee Supreme Court retention elections will be held August 7, 2014.

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UPDATE

Spending in the Tennessee Supreme Court races has now topped $1 million, according to new financial reports disclosed July 31, 2014. The reports also show that an organization opposed to retaining the Supreme Court justices has been almost entirely funded by contributions of $425,000 by the political action committee controlled by state senator and failed gubernatorial candidate Ron Ramsey. Senator Ramsey had previously said he had no intention of using his PAC money to try to oust the justices.  Senator Ramsey, an outspoken conservative, has also stated that his goal is to make sure the state Supreme Court “thinks like me.”

The recent financial disclosures do not reveal how much money other out-of-state interests, including the political arm of the billionaire conservative Koch brothers, have spent in efforts to defeat the justices.

The amount of money pouring into the Tennessee judicial races to unseat sitting justices, which is expected to increase substantially in the closing days of the campaign, is unprecedented in the state’s history.