State Senate Speaker Ron Ramsey has long urged the Legislature to overturn Tennessee’s retention-election system for appellate and Supreme Court judges. His usual refrain is that the system is unconstitutional, never mind that the Tennessee Supreme Court has twice upheld its constitutionality. Based on remarks he’s reportedly made both publicly and privately, moreover, there’s good reason to believe that he still wants judicial elections in which popularly elected high-court judges would be responsive to the sort of deep-pocket vested interests that have tainted wide-open judicial elections in other states.
Given that background, it would be foolish to trust the lieutenant governor’s latest ploy to sabotage appellate court elections.
A stinky trick
The issue arose again after Ramsey disclosed Thursday that he had told the Tennessee Supreme Court’s chief justice, Cornelia Clark, that he and other Republican leaders in the Legislature would drop their effort to rescind the current retention-election system if the Court would support his new proposal to seek a constitutional amendment that specifically would enshrine the present system for electing appellate level judges in state’s constitution.
This smacks of a stinky trick to lure the court’s agreement to a vote that could easily be sabotaged in a revved-up election by fervent anti-court opponents. Such a defeat would then give opponents more traction to jettison the current system.
In fact, there’s no need for a constitutional amendment to bless the present election-retention system. Having been sanctioned twice by the Supreme Court, it already rests on solid legal footing. There’s really nothing to be gained by seeking a new constitutional amendment, but there potentially could be a lot to lose.
Present system has elections
The current system for electing appellate level judges is affirmatively constitutional — in Tennessee as well as in other states that use a similar system — because voters do actually vote in elections on whether to keep or reject their high court and appeals court judges.
Though local state judges are popularly elected in open local races, where the campaign can be kept manageable, judges for appellate level courts are selected through a professional interview process that begins with extensive hearings.
The initial hearing and interview process is managed by a designated 17-member judicial nominating commission (the House speaker and Senate speaker each appoint eight members separately, plus one member jointly). Three nominees are then recommended to the governor, who initially appoints judges to both the appeal courts and the Supreme Court.
The new judges then stand for election in the next general election on a yes-no retention ballot. If they are defeated by a plurality of no-votes, the selection process begins anew.
The value of the system is widely considered superior to open and exorbitantly expensive statewide elections in which the candidate with the richest campaign treasury usually wins. States with open statewide judicial elections may see $15 million to $20 million election campaigns that turn on superficial attack ads and huge campaign treasuries, rather on a nominee’s judicial qualifications, impartiality, experience, ethics and integrity.
Where corruption lurks
The open-campaign system is explicitly vulnerable to outright corruption, or the clear appearance of corruption. Just a few years ago, for example, a competent and widely respected West Virginia Supreme Court judge, Warren McGraw, was defeated in a judicial election in which his opponent, Brent Benjamin, received the benefit of $3 million worth of advertising support from the CEO of Massey Coal Co., Don Blankenship, who apparently wanted to shape the court to his favor.
Indeed, once Benjamin was installed on the court, he helped approve a 3-2 decision that overturned a $50 million jury award for damages against Massey Coal. An appeal of that decision to the U.S. Supreme Court led to a rehearing of the original case. In the run-up to that trial, another West Virginia Supreme Court justice, Spike Maynard, was forced to recuse himself after pictures appeared in the media of him vacationing with Blankenship on the French Riviera.
The obvious lesson of such experiences is that rich special interests may easily corrupt the judicial system to buy the sort of justice they want.
The retention-election system, on the other hand, works exceedingly well by providing a competent examination panel to screen the credentials and records of nominees for appellate and Supreme Court judges. It also remains open to public accountability.
Judges can be defeated
Last November, for instance, voters in Iowa voted on yes-no retention ballots to deny re-election of four sitting Iowa Supreme Court justices who had ruled that gay couples had a constitutional right to marry. Similarly, former Tennessee Supreme Court Justice Penny White was voted off the high court in 1996 in a Republican backlash to her vote in a death penalty case.
Ramsey, a legislative veteran of 20-plus years who himself has benefited heavily from vast contributions from coal mining lobbyists, surely knows all this history. After years of trying to turn judges into partisan flacks, he apparently is offering his disguised sabotage plan only because he does not have the votes to push through his original proposal to kill the election-retention system.
Reject Ramsey’s proposal
His current proposal should be rejected out of hand. It is insulting, deceitful, harmful and unworthy of consideration. Tennessee’s appeals and Supreme Court justices would be foolish to consider supporting the idea. Ramsey’s motives are obvious. Tennessee deserves better; we deserve the superior justice system that we now enjoy.