Elections in Tennessee last week returned three of the highest ranking state judges to the bench for another eight-year term. Chief Justice Gary Wade, Justice Connie Clark, and Justice Sharon Lee each captured more than 55 percent of the vote in this off-year election cycle. The support for the three justices was strong across the state, and perhaps surprising in these days of highly partisan politics, it was unequivocally bipartisan.
Republican and Democratic lawyers, prosecutors, retired judges, and community-minded citizens banded together to convey the message that "Justice is not for sale in Tennessee." In what has become a decidedly red state in the last 20 years, Tennessee judicial supporters beat back opposition from a vocal minority headed by Republican Lt. Gov. Ron Ramsey, his loyal followers, and well financed out-of-state interests.
In the past it was unusual for state court judges to come under attack. It has happened only once before--in 1996-- in Tennessee when Justice Penny White was voted off the bench at a time when judicial canons forbade her to respond to her detractors. Times have changed.
Currently the decision by narrowly defined political groups to go after incumbent judges has become more common. In Iowa three justices lost their seats in 2010 after ruling on the legality of same sex marriages. This year alone there are ballot challenges to judges underway in Michigan, Montana, New Mexico, North Carolina, Ohio and Texas. But the victory of the Supreme Court justices in Tennessee should be seen for what it is and not misunderstood in the political gamesmanship of blue vs. red state politics. A rare moment of bipartisan cooperation produced this election result.
Justices Wade, Clark, and Lee were each appointed by Democratic Governor Phil Bredesen and earlier this year approved by the Judicial Performance Evaluation Commission, whose members were selected by the GOP legislative leadership, before having their name placed on the August ballot for retention or replacement.
Lt. Gov. Ron Ramsey, Republican, instigated the removal campaign. He claimed that the justices are anti-business, soft on crime, and responsible for appointment of a state attorney general of whom Ramsey is critical, and most recently his criticism is that the justices have supported Obamacare.
The effort to unseat the justices by the use of false information is what brought together support across the state. The response to the unfairness of Ramsey's attacks was immediate, wide, and bipartisan. Former U.S. Attorney Edward M. Yarbrough, appointed by President George W. Bush, spoke out on behalf of the justices. Retired Justice William C. Koch, Republican, former cabinet member of Gov. Lamar Alexander Administration, denounced the unfairness of the campaign to unseat the justices. Former Appeals Court Judge Lew Conner, Republican and friend of Senator Lamar Alexander, added his voice in support of the justices. Former Chief Justice Frank Drowota, Democrat, and Former Chief Justice William M. “Mickey” Barker, Republican, each spoke passionately and convincingly on the issues. "Opponents are trying to turn the Court, a non-political branch of government, into one that rules in favor of their political agenda instead of the law and facts of cases as required by our Constitution and state law. I am a Republican, but politics has no place in a courtroom. Let’s keep it that way," said Justice Barker from Chattanooga.
Editorial boards across the state wrote to set the record straight prior to the vote last week. In Nashville, the Tennessean stated, “Ramsey also is counting on most voters not looking beyond the campaign’s deceptive ads, which, for example, falsely accuse Wade, Clark, and Lee of being soft on crime. In most states, justices who support the death penalty in 90 percent of cases before them would be called just the opposite. In fact, based on these justices’ decision-making on the bench, they should be retained. Their rulings exhibit none of the “liberal activism” that Ramsey and his cronies complain of. But that does not make the retention process any cleaner.”
In Knoxville, the News-Sentinel said, "Wade, Clark, and Lee have been solid justices whose decisions typically are well-reasoned applications of the law to the particulars cases at hand. The Judicial Performance Evaluation Commission, whose members were selected by the GOP legislative leadership, recommended the three for retention."
Additionally, 14 current and retired prosecutors from across the state endorsed the justices, refuting the myth that the Supreme Court is “soft on crime.” This bipartisan group of prosecutors represents diverse counties across the state. Heading this group was District Attorney General Tom P. Thompson, Jr. Thompson has served 37 years and is believed to be America’s longest-serving district attorney.
Similarly, the Tennessee State Fraternal Order of Police, a bipartisan organization representing 10,000 law enforcement officers, supported the retention of the justices.
"Partisan politics should not enter the court system. To allow such undermines the rule of law so vital to an orderly and civil society . . .,” said Chairman Lloyd Daugherty of The Tennessee Conservative Union.
The collective voice of these Tennesseans came together in August to protect judicial independence. To be sure, this group almost certainly disagrees with the president's policies, the direction of Congress, and legislation in Nashville. It is unlikely that they would work together on many other measures. But when it comes to the courts and the independence of the judiciary, the message is clear. When faced with an adversary who promotes a campaign based on unfair and false information, Tennesseans will act. Last Thursday's result should be understood as an act of civil obedience. Men and women who value the independence of the state's highest court have acted together to repel a campaign of misinformation. They fought it off with facts. The lesson learned is this: on a narrowly defined issue, citizens can find common ground with their political opponents and will do what is in the best interest of Tennessee.