August 11, 2014
Despite a well-funded and professionally organized campaign against them, three Tennessee Supreme Court Justices received overwhelming support from voters in winning the August 7, 2014 retention election. Spending in the races – which are usually sleepy, low-profile events – far exceeded $1 million. As detailed in a prior post, attacks by the justices’ opponents were viewed by some as having little or no basis in fact, including allegations that the justices were somehow responsible for Obamacare. The attacks were heavily funded by a former conservative gubernatorial candidate and current state senator, Ron Ramsey, whose stated goal was to replace the justices so the resulting court would be one that “thinks like me.” An out-of-state group tied to the conservative billionaire Koch brothers also reportedly spent significant money levying attacks on the justices.
It might be too early to understand all the long term effects, in Tennessee and nationwide, of the historic spending and attention paid to the Tennessee judicial elections. Three early take-aways emerge, however, from the justices’ resounding victories:
- Partisan politics add little value to appellate judicial elections.
The three targeted justices were appointed by a popular centrist Democrat governor, Phil Bredesen, who won all 95 Tennessee counties when re-elected in 2006. The justice’s opponents however, grounded many of their attacks in partisan buzz words and themes traditionally used against Democrats, such as labeling the justices “liberals,” “soft on crime,” and “anti-business.” These themes appeared to be calculated to create a sense of immediate danger to voters’ values, families, and jobs if the justices are retained.
But the partisan attacks apparently fell flat. The justices won the vast majority of the counties in the state, including in counties where voters have overwhelmingly supported Republicans in recent years. For example, in one of the state’s most affluent counties, heavily Republican Williamson County, where 86% of the voters voted in the Republican primary, more than 54% voted to retain the justices. In other words, a significant number of Republican voters in that county apparently rejected the position of one of its party leaders, Sen. Ramsey, and voted to retain the justices.
- The truth matters.
Many attacks on the justices, supporters argued, were based on distortions or outright untruths. For example, opponents repeatedly tried to tie the justices to President Obama, who remains very unpopular in Tennessee, and charged that the justices bore responsibility for the enactment of the Affordable Care Act (Obamacare). The link opponents made between the justices and Obamacare was that in 2006 the court appointed an attorney general who, in 2014, declined to join largely unsuccessful federal lawsuits filed by 28 other states challenging Obamacare’s constitutionality. In addition to the tenuous nature of this attack, one of the justices was not even on the court when it appointed the attorney general. In any event, the Tennessee Supreme Court has not heard, and never will hear, a lawsuit about Obamacare’s constitutionality.
Opponents also charged that the justices were “soft on crime” by highlighting two instances where the court issued opinions in death penalty cases: in one case the court remanded for a hearing to determine whether the defendant was “intellectually disabled”; in the other, the court reversed a conviction based on a single, challenged eyewitness identification, and granted a new trial because the trial court should have permitted a defense expert to testify about the potential unreliability of eyewitness identifications.
The justices’ supporters countered that the justices upheld the death penalty in 18 of the 21 death cases it decided. Moreover, both of the rulings highlighted by opponents were unanimous, including being joined by the two justices appointed by the state’s current Republican governor.
Again, a significant number of voters evidently rejected these attacks or at least found them unpersuasive.
- Judicial independence is a shared value.
In the face of well-funded opposition, the justices successfully raised more than $1,000,000. Similarly important, the justices garnered support from a broad range of Tennesseans, including prosecutors, police, various bar associations, defense lawyers, plaintiffs lawyers, former judges from both political parties, influential members of the business community, and prominent Republicans (Tennessee’s Republican governor declined to join efforts to oust the justices and said he sees “danger” in the effort).
A common thread among the diverse supporters was, regardless of whether one agrees with the outcome of any particular case, an independent, fair-minded judiciary is necessary to protect the rule of law. Conversely, many supporters argued, an ideological court that would decide cases to achieve a pre-determined result, rather than by applying the law to the facts, would be a great detriment. The consistency of the themes repeatedly advanced by the justices’ supporters suggests that having an independent judiciary is a value shared by many, regardless of profession or politics.
The three Tennessee Supreme Court justices will not face another retention election until their 8-year terms expire in 2022. Some commentators suggest, however, that voters can expect well-funded, sophisticatedly organized, bare-knuckle campaigns in judicial retention elections nationwide for the foreseeable future. It remains difficult to imagine how turning appellate judges into retail politicians serves the ends of justice.