Republicans at both the state and national level are poised for a what appears to be a collaborative effort to give their party control of Tennessee’s judicial branch of government, just as it controls the executive and legislative branches.
“Tennessee is definitely on our radar,” said Jill Bader, communications director for the Washington-based Republican State Leadership Committee, which last week announced a nationwide “Judicial Fairness Initiative” to put more conservative judges on state Supeme Courts.
In Tennessee, that would mean a campaign urging voters to vote no in Aug. 7 balloting on whether three state Supreme Court justices originally appointed by former Democratic Gov. Phil Bredesen should get new terms. If they are rejected, Republican Gov. Bill Haslam will name their successors.
“While our main priority at the Tennessee Republican Party for the August election continues to be electing Republicans through our Red to the Roots program, their goals and our actions may well overlap,” said Tennessee GOP Chairman Chris Devaney of the RSLC initiative.
“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.
“Unfortunately, in too many judicial races, voters are starved of information and forced to make a critically important decision completely in the dark,” said Matt Walter, RSLC president. “The RSLC’s Judicial Fairness Initiative will focus on educating voters to better understand the ideology of candidates up for judicial branch elections.” (Note: The RSLC press release is HERE.)
The RSLC has already donated $650,000 to a campaign aimed at unseating a North Carolina Supreme Court judge. A Washington Post article quoted Walter as saying RSLC will spend “north of $5 million” in other states.
But the move to put a party label on judges in Tennessee is opposed by many in the legal profession, including some Republicans, as injecting politics into a branch of government that is supposed to be unbiased and independent.
“It distresses me,” said Lew Conner, a Nashville lawyer and former state Court of Appeals judge who joined Haslam, Bredesen, former U.S. Sen. Fred Thompson and others last week in announcing formation of “Yes on 2,” a bipartisan effort to convince voters to support an amendment to the state constitution that will be on the November ballot. Conner is a veteran GOP activist and has been a major fundraiser, especially for U.S. Sen. Lamar Alexander in various past campaigns.
In essence, the amendment is intended to validate the state’s current system of having appellate court judges — including Supreme Court justices — initially appointed by the governor with voters deciding in a retention election, voting simply yes or no, whether they get new terms once the initial appointment expires. There has been much controversy over whether the current system violates the language of the state constitution as it now stands.
Conner was speaking in an interview on the effort to have voters reject new terms for Supreme Court Justices Cornelia Clark, Sharon Lee and Gary Wade. All are known as Democrats, though all come from areas with Republican voting traditions — Clark from Williamson County, Lee from Knox County and Wade from Sevier County, where he says he has not voted in a Democratic primary for decades.
The current selection system for judges, which would be solidified by the constitutional amendment, was “never designed to have people be kept out or thrown out on a partisan basis,” Conner said.
The Judicial Evaluation Commission unanimously recommended new terms for Lee and Wade, and Clark got just one dissenting vote. Conner noted the panel was appointed by Lt. Gov. Ron Ramsey and House Speaker Beth Harwell. Ramsey has become a leading proponent in calling for defeat of the three justices. Bader said in an interview that the Senate speaker “keeps us very up to date with what’s going on in Tennessee” and that RSLC, in deciding target states for its new initiative, looks to “grassroots folks on the ground” providing input.
Ramsey said he does not see himself as “leading the charge” against the three Supreme Court justices, but will be making a point of urging voters to reject them. Conner said he sees Ramsey as the point man in the effort and thinks the Senate speaker is being inconsistent in supporting the “Yes on 2” campaign in support of nonpartisan retention elections while advocating rejection of qualified and recommended judges on a partisan basis.
Ramsey, on the other hand, does not. He said in an interview that it is “really hypocritical” to support retention elections, then oppose those who take a stand one way or another on the coming yes-no vote on whether a judge gets a new term.
Republican Thompson, in remarks at the “Yes on 2” kickoff, made a point of declaring that the judicial system needs to be nonpartisan, in contrast to the executive and legislative branches.
“Politicians are supposed to have opinions. They’re supposed to make promises,” he said. “Judges are unique in our system in that they have to do exactly the opposite and therefore it shouldn’t be incumbent on them to have to raise millions of dollars with people coming in here from God knows where with millions of dollars supporting someone who is not supposed to be paying attention of people giving them all that money.”
But in an interview afterward, Thompson declined to take a position on whether the three Supreme Court justices should be retained or voice an opinion on identifying candidates by party label, saying he was unaware of the GOP efforts.
“I don’t think the money issue is as prevalent in an up-or-down (retention) vote as it is in a statewide campaign in a traditional sense,” he said. “But I’m really not familiar with what’s going on there.”
Haslam also declined to say whether he would vote for or against retention of the three Democratic justices, though declaring he has “a great working relationship with all three.”
The Republican effort to unseat the three assumes that Haslam will name Republican replacements. Asked if that was a valid assumption, Haslam said he believes “we have a track record of picking the very, very best people” to fill vacant judgeships. In his two appointments to the Supreme Court bench so far, he has chosen Republicans.
“I’m always going to start with somebody who has both a proven record and who has a judicial philosophy that we agree with,” he said. “In that sense, it does apply that people whose judicial philosophy matches mine are typically going to be Republicans more often than not.”
Bredesen said he strongly supports keeping Clark, Lee and Wade on the Court, believing they have proved themselves as capable and unbiased jurists as exemplified by the “overwhelming” recommendation for new terms from the evaluation commission.
“Non-retention ought to be reserved for someone who is clearly doing an inadequate job in some fashion,” Bredesen said.
State Democratic Chairman Roy Herron said as an attorney he supports nonpartisan election of judges.
“By law, this (Supreme Court retention election) is a nonpartisan election, so I’m not taking a partisan position as Democratic chairman,” he said in an emailed statement.
“Inasmuch as distinguished Republican lawyers like Commissioner (Lewis) Donelson, Judge Lew Conner, and Congressman Bill Jenkins want Democratic lawyers to join them in saying that the Supreme Court ought be above partisan politics, I agree with them.
“And I am impressed that the Republicans who make up the Judicial Evaluation Commission, who were chosen by our Republican legislative speakers, gave unanimous approval to two justices and eight of nine approved the third justice (Clark).”
Donelson is a prominent Memphis lawyer who served as state finance commissioner when Republican Alexander was governor.
While favoring nonpartisan election of judges, Herron said the Democratic party will be active in supporting Democrats for election as judges at the local level in opposition to the GOP “Red to the Roots” effort.
In the past, RSLC has active in providing funds for Republican legislative candidates in Tennessee – for example, $458,000 in 2008, the year Republicans first won control of the state House, most going to ads that attacked Democrats.
In other states, RSLC has been provided substantial funding to GOP candidates for attorney general, secretary of state and lieutenant governor and other offices. But in Tennessee those positions are not filled by popular election. The lieutenant governor is elected by the state Senate and the secretary of state by the Legislature voting as a whole.
Tennessee’s attorney general is chosen by the state Supreme Court. The term of the current attorney general, Bob Cooper, is a Democrat whose term expires on Aug. 31, along with the terms of all Supreme Court justices. Thus the justices holding office after that will pick the next attorney general.
If the three justices seeking new terms win, they will constitute a majority on the court. Two Republicans appointed by Haslam will take office on Sept. 1.
Should one or more be rejected, however, the majority on the court would shift to Republicans. Ramsey says that defeating the Democrats in the August referendum is seen by RSLC as a “relatively inexpensive” way to put a new Republican attorney general in place.