While an intense campaign has developed over whether three Democrat-appointed justices should be retained on Tennessee’s Supreme Court, the combatants on both sides are not taking a stance on two Republicans chosen by Gov. Bill Haslam who are also on the statewide ballot.
The voting on Justice Jeff Bivins of Franklin, who was sworn into office last week by Haslam, and Holly Kirby of Memphis, who will take office Sept. 1, comes because of an unusual interaction between the timing of their appointments to the state’s highest court and related state laws, according to Mark Goins, state coordinator of elections.
Bivins was a Court of Criminal Appeals judge before taking his Supreme Court seat; Kirby serves on the Court of Appeals. Back in February, both declared themselves candidates for new eight-year terms in those positions along with 18 other appellate court judges and Supreme Court Justices Cornelia Clark, Sharon Lee and Gary Wade.
After they were later named by Haslam to fill Supreme Court vacancies, Goins said both Bivins and Kirby contacted his office to see if their names could be removed from the statewide ballot. After researching the relevant law, he said they could not.
Thus, both Haslam appointees will be subject to rejection or retention as appeals court judges by the voters, even though they will be sitting on the Supreme Court bench instead.
The votes on Bivins and Kirby thus may be largely symbolic, since they apparently would still have their Supreme Court seats if rejected by voters for sitting on the lower courts. Goins said “I’m not qualified to say” what a rejection of Kirby or Bivins would mean for their standing as Supreme Court justices, and the matter, if it arose, might be decided in court.
Still, a rejection would at least be an embarrassment for Haslam and the justices themselves. Some lawyers and judges have fretted privately that the situation also adds another element of partisanship to the retention election. There is also concern that attacks on the three Democrat-appointed judges could have a spillover effect on the other appeals court judges on the ballot.
Clark, Lee and Wade have made a campaign theme of the need to avoid partisanship in the court system. They have been attacked in a TV ad, direct mail pieces, phone bank calls and news releases as “liberal” and “left wing” by groups including the Republican State Leadership Committee, the Tennessee Forum and Tennesseans for Judicial Accountability.
Bivins, Kirby and the other appeals court judges have kept quiet during the campaign about their own retention status. So have both sides in the heated battle over retention or rejection of the three incumbent justices initially appointed by Democratic Gov. Phil Bredesen.
In response to an inquiry, Alexia Poe, communications director for Haslam, said the governor is not taking a position on the retention of any judges, believing that would be improper because he would appoint successors to any defeated judges. As for Bivins and Kirby, she said the election will have no effect one way or the other.
“Except for the timing, these two would not be in a retention election,” Poe said in an email, noting that Bivins has already taken his seat and Kirby’s successor on the Court of Appeals has already been chosen by the governor.
“So the retention elections for Judge Bivins and Judge Kirby will not have any effect in light of the resignations and new appointments,” she said.
Bivins was named to succeed Justice William Koch, who resigned to become dean of the Nashville School of Law, while Kirby succeeds Justice Janice Holder, who is retiring effective Aug. 31.
Carol Andrews, spokeswoman for the three incumbent justices’ campaign, and Susan Hart, spokeswoman for two of the groups opposing them, both voiced no opinion on retention or rejection of other appeals court judges in response to a reporter’s questions.
“Justice Clark, Justice Lee and Chief Justice Wade are pleased to have Judge Kirby and Justice Bivins join them on the Supreme Court but cannot speak to a fluke that leaves them on the retention ballot for the appellate court,” said Andrews in an email.
“The Tennessee Forum (and TNJA) are only concerned about the three incumbent justices,” Hart said in an email. TNJA is the abbreviation for Tennesseans for Judicial Accountability, which, so far, has only issued news releases on its opposition to the three Democrat-appointed justices. The Forum group has sent out direct mail attacks and sponsored a television ad.
A spokesman for Lt. Gov. Ron Ramsey, who has taken a lead role in criticizing the Democrat-appointed justices, did not respond to a request for the Senate speaker’s views on retention of other judges on the statewide ballot.
Tennessee Democratic Party Chairman Roy Herron sent this email:
“Like distinguished Republicans such as former Chief Justice (William ‘Mickey’) Barker and Judge (Lew) Connor, I agree with the nonpartisan merit system that overwhelmingly recommended retention of our Supreme Court justices, including the two Republicans recently appointed by Governor Haslam to join the court. The Judicial Evaluation Commission, appointed by the Republican speakers and lieutenant governor, rightly recommended all five justices and justices-to-be.”
Michael Sullivan, deputy executive director of the state Republican Party, sent this email:
“Our bylaws prevent the party from taking an official stance on these races. That said, Chairman (Chris) Devaney personally supports the effort to replace the three Supreme Court justices based on their record.”