While a great national political dither developed last week over replacing the late U.S. Supreme Court Justice Anthony Scalia, our Legislature was moving methodically — with virtually no controversy whatsoever — to fill a vacancy on the Tennessee Supreme Court.
Barring the bizarre, Roger Page, now a Court of Criminal Appeals judge from West Tennessee, will be formally confirmed Monday evening in a joint House-Senate session as a Tennessee Supreme Court justice, succeeding former Justice Gary Wade, who resigned last September.
Confirmation will probably be unanimous, or nearly so. In contrast, Republicans in Washington gave advance notice that they would reject anyone appointed to succeed Scalia by Democratic President Barack Obama, assuring the conservative justice’s seat will remain empty for a year as a political uproar continues.
Oh, there had been some Tennessee legislator dithering previously. But that year-long and rather arcane dispute was between the House and Senate over the procedural aspects of judicial confirmation. It was resolved a couple of weeks ago with a House-Senate compromise on circumstances that would cause rejection of a gubernatorial nominee – a situation that virtually all legislators agreed did not apply in the case of Page, but which many fretted could develop at some point in the future if a governor goes wild and makes a controversial appointment.
Page is the first person nominated for a state Supreme Court seat under an amendment to the state Constitution approved by voters in November 2014 that revised the process. So it is a precedent-setting situation, albeit given little media attention because of Page’s non-controversial nature.
In selecting the former pharmacist from Medina, TN, Gov. Bill Haslam achieved a remarkable compromise that, judging by commentary in committee confirmation hearings, seems to have left everyone in Legislatorland content – arch-conservatives in the GOP supermajority as well as Democrats.
As a threshold proposition, here’s a line repeated used by Page in hearings, with minor variations: “I think we (members of the judicial branch of government) should always defer to the Legislature.”
This is something that many legislators like to hear. Some, it’s fair to say, are dedicated to making the judicial branch subservient to the judicial branch – and the executive branch, too, for that matter.
To please conservatives, Page — responding to Republican senator questions — declared that Scalia was “one of the best Supreme Court justices we ever had” and “I agree with most everything Justice Scalia ever said.” A possible exception on the latter point, he added, is that Scalia had at times downplayed the importance of “legislative history” in judicial decisions and, well, he thinks the Legislature’s thinking is very important.
As for Democrats, well, Page is married to a known Democrat, Davidson County Chancellor Carol McCoy. He advised the Senate Judiciary Committee that his spouse has decided to retire effective Aug. 31 and that he will recuse himself from deciding any case involving an appeal of her decisions before then.
Responding to a question from Senate Minority Leader Lee Harris, D-Memphis, Page recalled being criticized publicly for granting probation to a teenager charged with “several felonies” after fashioning a bomb that could not possibly function, allegedly to be used against a convenience store that had fired him. Page said, basically, it was a stupid kid mistake and the youth has since met all probation requirements, graduated from college and is leading an exemplary life.
At another point, he professed concern about poor people having adequate representation in court proceedings, saying there’s room for improvement in both civil and criminal proceedings involving the indigent who can’t afford to hire their own lawyers.
Page diplomatically dodged questions on what he suggested at one point were “hot-button issues” – abortion and gay marriage being two of them – by citing a concern for violating rules against judges making any public comment that might show bias in cases that could come before them.
But, as a general proposition, he declared a bias against seeing either the state or federal constitutions as a “living, breathing document” and a preference for strict constitutional construction of what the founding fathers intended — rather like Scalia.
In comment to the Senate committee, Attorney General Herbert Slatery noted the “marked contrast” between the Tennessee Legislature’s embrace of Page and the war over Scalia’s successor in Washington. That’s a good thing, he suggested.
No argument here with that notion. Maybe Obama should consider Page as a U.S. Supreme Court nominee.
Note: This is an unedited version of a column written for Sunday’s News Sentinel. The edited version is HERE.