Closing Argument On Retention Election 2014

Wednesday, August 6, 2014

A number of lawyers and judges are seemingly fearful of partisan campaigns when it comes to whether voters choose to replace or retain our justices.  Perhaps those same lawyers and judges feel that politics or campaign finance interests would sway the opinions of future justices.  Ironically, those same lawyers and judges don’t have that identical concern for the existing justices even after they accepted over $1,000,000 and will be subject to retention again at a later point if retained this year.  

A number of lawyers and judges have said that the election to replace is nothing more than a power grab by the lieutenant governor, thus creating the farce that one branch can magically control another, which is not true in reality.  The branches are independent and have their own powers pursuant to the Constitution.   

Consider that the lieutenant governor is actually doing the judicial branch a favor, and more importantly, the voters too.  How?  A Tennessee Supreme Court determined by the voters under a partisan campaign is a court more powerful among the branches than it would be otherwise.  The reason: political legitimacy to govern autonomously is derived from the sovereign.  Public officials obtain power when voters elect them to do the business of government.  As for empowering the voter, it is through the vigorous public debate associated with partisan campaigns that the voters become aware of their voting rights, gain knowledge about the candidates, and partake as citizens in the formation of their government through the democratic process.  

The Tennessee Supreme Court is not just a court that opines on cases (which by the way can often be appealed to the United States Supreme Court as a court of last resort unless it is an independent and adequate state issue).  These justices oversee the Administrative Office of the Courts.  The AOC presides over numerous state government functions impacting the judicial branch, including the administration of the lower courts, the regulation of the practice of law, the victim’s fund, and many other programs.  As with any government branch, the elected public officials with oversight should be accountable to the voters.  Apparently this only happens for the justices when a partisan campaign is launched during a retention election year.  

I may be a lawyer, but I am a Tennessean first.  I will be voting to replace the justices because I believe that no justice should contest having to plea their case in a partisan race – that’s how we hold our elected public officials accountable as voters. 

Pursuant to Article VI, Section 3 of the Tennessee Constitution, “judges of the supreme court shall be elected by the qualified voters of the state.”   

James H. Dunn
Attorney at Law



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