Three justices on the Tennessee Supreme Court are facing an election-year attack, not for any particular decision they have authored or even for any unpopular opinion they have espoused. No, in an ugly campaign in Tennessee that appears to be getting ever uglier, Senate Speaker Ron Ramsey, who is also the state’s lieutenant governor, is attempting to oust three state Supreme Court justices in their Aug. 7 retention elections, chiefly for the judicial outrage of having been appointed to the high court by a Democrat. Under Tennessee law, the governor appoints Supreme Court justices, and then they come up for retention elections every eight years thereafter. This is a pretty common set-up in states that elect their justices.
Former Democratic Gov. Phil Bredesen appointed justices Gary Wade, Cornelia Clark, and Sharon Lee to the high court. They are all up for retention in two months and Ramsey, seemingly unable to get past the first few entries in the “Stock Campaign Insults” dictionary, has mounted a statewide assault targeting the three as “soft on crime” and “anti-business.” As the Shreveport Times notes, Ramsey is going after the three jurists “despite the fact that the Judicial Performance Evaluation Commission that Ramsey helped to appoint found them qualified to retain their posts.” Ramsey is a member of the Republican State Leadership Committee, which has a history of targeting judicial races across the country and calls the Tennessee race “high on our radar.”
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.”
Or it may not even be that targeted. As the editors suggest, “since the Republican Party now has supermajorities in both legislative houses and holds the governor’s office, perhaps the campaign only is an effort to complete the trifecta with the addition of the judicial branch.”
Sam Venable, a columnist at the Knoxville News-Sentinel, pointed out last week that purging the entire state of all those with a “D” behind their name—or anyone seated by anyone with a “D” behind his or her name—“is completely understandable, of course. It’s what politicians do. It’s how they live, breathe and have their being.” And of course this is true. Smearing judges who can’t, or won’t, smear back is politics pure and simple. 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.
Note that Tennessee is using the appointment-with-retention-election system for picking judges, which is often cited as a nice, safe way to get partisan politics out of the judicial selection process. Until some people decide they don’t like the judges that the governor of the other party selected, so they’re going to work to defeat them so that the governor of their preferred political party can name replacements. Note that since these are retention elections, these judges don’t have opponents, so they technically exist outside the partisan voting process, and definitely aren’t affected by straight-ticket voting. And yet they’re affected by the partisan voting process anyway, because the people who are the most interested in the outcome of these elections are smart enough to know who plays for which team. The lack of a label on the actual ballot does not deter them. Which is what I’ve been saying all along.
I keep harping on this issue because there continue to be so many examples of why the “solutions” that so many people like to propose to “fix” the judicial selection process don’t actually work they way their advocates claim they would. The root of all problems in the judicial election process is the influence of money in judicial elections. You have to address that problem if you want to have any chance at success. I can’t see any path to a solution for judicial elections that doesn’t involve strictly limiting campaign contributions and/or public financing of judicial elections. As we currently live in a Citizens United world, that will probably require a Constitutional amendment allowing for such limits on campaign spending first. Hey, I never said this was going to be easy. The alternate path is an appointment-only system for all judicial positions, which needless to say has its own hurdles to overcome – there are thousands of judgeships in Texas, so just having a system that can scale to such a degree is daunting, and of course there’s politics aplenty any time one person gets to hand out goodies like these. My preferred approach is to overhaul the campaign finance system first, since that would also help make for better non-judicial elections, and then deal with whatever problems remain. That’s a journey of a thousand miles, and the sooner we take that first step without going down needless detours, the better.