I am a lawyer, and I am not afraid to publicly admit that I am voting to replace all three Tennessee Supreme Court justices.
The Tennessee judiciary was politicized in 1971. A year earlier, Winfield Dunn had become the first Republican governor elected in 50 years. The Democrat legislature feared that Republicans would soon begin to win statewide elections for Supreme Court, according to my friend John Jay Hooker, the Democrat nominee who lost to Governor Dunn. He says that was the reason statewide elections for Supreme Court were replaced with the Missouri Plan, in which a panel of 14 lawyers and three non-lawyers chose three nominees from which the governor appointed one. Because the state constitution still required an election, the legislature tacked on a "retain/replace" election at the end of each eight-year judicial term. That is the election at hand this year.
I am voting to replace the Supreme Court in part for their role in ObamaCare. I passed a law this year prohibiting ObamaCare expansion in Tennessee. The Tennessee decision not to expand Medicaid under ObamaCare is possible only because 28 states joined the lawsuit against ObamaCare and won that issue in the U.S. Supreme Court. Tennessee did not join the lawsuit against ObamaCare because the Attorney General refused. Two of the three Supreme Court justices on the ballot tomorrow appointed our liberal Attorney General. I would prefer a conservative Supreme Court to appoint a conservative Attorney General who will fight for Tennesseans against federal government overreach.
I am also voting to replace the Supreme Court justices because their judicial philosophy is out of step with the conservative values of Tennesseans. All three justices signed at least one of two opinions making it harder to dispose of frivolous lawsuits under Tennessee law than it is under federal law. These two decisions would lead to unnecessary, lengthy, and expensive trials even when the facts are not disputed. Thankfully, the General Assembly corrected this judicial overreach with two laws I sponsored.
I fear another law I helped sponsor, Governor Haslam's Civil Justice Act of 2011, is in peril if all three justices are retained. That law is helping bring jobs to Tennessee by providing predictability in our courts. The law has replaced jackpot justice with certainty in damages that are hard to quantify like pain and suffering. Judges with liberal judicial philosophies in other states have struck down such laws using activist opinions similar to the two opinions I mentioned above. I fear that Governor Haslam's signature judicial reform may face the same fate in Tennessee.
Our three Supreme Court justices are not bad jurists, but I trust Governor Haslam to appoint even better jurists if given the chance-- jurists that match his values. I will be voting to retain many of the governor's nominees for the intermediate courts of appeals. I applaud Governor Haslam's appointment to the Supreme Court of Justices Holly Kirby and Jeff Bivins. I want to give Governor Haslam the chance to appoint three more Supreme Court justices. That is why I am voting to replace.
(State Senator Brian Kelsey represents Cordova, East Memphis, and Germantown and is Chairman of the Senate Judiciary Committee.)