published Friday, April 17th, 2009

Tennessee: Ramsey accuses Holder of ‘lobbying’

NASHVILLE — Lt. Gov. Ron Ramsey questioned Thursday whether Tennessee Supreme Court Chief Justice Janice Holder violated judicial ethics rules by saying she was “lobbying” to keep the current plan for selecting state Supreme Court and appellate judges.

“I guess it bothers me now when we have Supreme Court justices going across the state, putting politics back into this,” Lt. Gov. Ramsey, R-Blountville, told reporters. “I know Janice Holder was down, I think, in Memphis this week saying that we shouldn’t be electing judges.

“I don’t know exactly how far that goes and still be ethical, to be honest, for them to be out here speaking to Rotary clubs and Kiwanis clubs lobbying for a bill,” he said. “That seems to be against their code of ethics. Maybe it’s not. But it seems to me that it almost crosses the line.”

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Under current law, the governor fills vacancies on the Tennessee Supreme Court, Tennessee Court of Appeals and Court of Criminal Appeals from three nominees chosen by the 17-member Judicial Selection Commission. The governor can reject nominees but must select from a second panel of nominees forwarded by the commission. Once on the bench, the appointed judge’s name is put on the ballot for a simple yes/no retention vote at the next statewide election.

Chief Justice Holder was quoted by the Memphis Flyer this week as “vigorously” defending the so-called Tennessee Plan. The 1994 plan did away with competitive elections for the Supreme Court and replaced them with a system in which a judicial selection commission screens all appellate judicial candidates and forwards a slate of nominees to governors who must pick from their recommendations.

Once on the bench, according to the plan, appellate judges later are evaluated and subject to yes/no retention elections.

Republicans including Lt. Gov. Ramsey, who is Senate speaker, have questioned the constitutionality of the plan, which was upheld by two special Supreme Courts. Last year, Senate Republicans held up renewing the system, which is scheduled to expire after June 30.

Chief Justice Holder, a Republican appointee who previously has expressed support for the Tennessee Plan, said in a statement she has done nothing improper in rushing to its defense.

While she said she appreciates Lt. Gov. Ramsey’s efforts on the issue, the chief justice noted “Canon 4 of the Code of Judicial Conduct specifically permits, and even encourages, judges to speak out on issues involving the law, the legal system or the administration of justice, just as I was doing when I addressed my own Kiwanis Club this week.”

She said she looks forward to working with Lt. Gov. Ramsey and others “to reach a solution to the judicial selection issue that serves the best interests of the public and the persons who have business in Tennessee’s courts.”

Former state Supreme Court Chief Justice William “Mickey” Barker, of Signal Mountain, a Republican appointee who retired last fall, said while the code bans discussions of pending litigation, it “encourages judges to speak up on behalf of the judicial system.”

“And so it’s not a violation of the Code of Judicial Conduct to speak up on behalf of what you think, as a judge, improves or enhances or keeps a fair and impartial judiciary in this country,” he said.

The retired chief justice said he “absolutely” backs the current system. He said partisan, contested elections have turned into special interest-funded battles in states such as Alabama.

Lt. Gov. Ramsey, who actively is exploring a gubernatorial bid, said he believes the judicial retention elections are the best route but he questions the system’s constitutionality, as has a Vanderbilt University law professor.

about Andy Sher...

Andy Sher is a Nashville-based staff writer covering Tennessee state government and politics for the Times Free Press. A Washington correspondent from 1999-2005 for the Times Free Press, Andy previously headed up state Capitol coverage for The Chattanooga Times, worked as a state Capitol reporter for The Nashville Banner and was a contributor to The Tennessee Journal, among other publications. Andy worked for 17 years at The Chattanooga Times covering police, health care, county government, ...

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BLewis said...

Recently, harsh critics of our judicial selection system of merit selection, performance evaluation and retention elections for Tennessee’s appellate judges have unfairly assailed Supreme Court Justices and other members of the judicial branch for expressing their viewpoints in support of the current system. These critics have suggested that it is inappropriate or even unethical for judges to comment on matters related to the way in which judges are selected. Judges, and particularly Supreme Court Justices, who lead a separate and co-equal branch of government have a responsibility to speak for that branch. There is no legal or ethical prohibition restraining that responsibility, nor should there be.

The architects of our Constitution established three branches of government – the executive, legislative and judicial branch. Each of those branches is given specific responsibilities. The balance of power between those three branches has led to the world’s most successful model of self-government. When deciding cases, all judges are sworn to do so in a fair and impartial manner. In addition to the role of judge or impartial referee, justices of the Supreme Court, particularly the Chief Justice, as the head of the co-equal judicial branch, have a responsibility to advocate for measures which lead to the most effective administration of justice.

Suppose, for example, the Governor was to decide that he believes that the terms of state senators should be shortened from four years to two years. The Speaker of the Senate would be expected to speak to the merits of that proposal. Indeed, we would expect that the speaker would talk with the media and colleagues and try to persuade them to his viewpoint. No one would find this inappropriate or label it as unethical lobbying. The Justices of the Supreme Court and the judges of the other courts are doing no less than fulfilling their responsibilities as members of a co-equal branch of government when they advocate for their viewpoint on judicial selection.

The Code of Judicial Conduct adopted in virtually every jurisdiction in this country says that each judge has an affirmative responsibility to diligently discharge their administrative responsibilities. Judges are ethically permitted to speak concerning the administration of justice.

The Tennessee Bar Association, representing the views of more than 80% of its members, and the unanimous view of its Board of Governors, continues to advocate for a continuation of a system for merit selection, performance evaluation and retention elections for Tennessee’s appellate judges. This viewpoint has achieved widespread support among the business and civic community. Attacks upon judges for sharing their views are terribly misplaced in our democracy.

George T. Lewis Tennessee Bar Association, President

May 1, 2009 at 5:26 p.m.
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