It is strange on its face that another challenge against Tennessee’s judicial retention system — the seventh by implacable Nashville attorney John J. Hooker — is again due an appeal hearing by a specially appointed state Supreme Court panel. One would think Hooker would have given up by now. It’s even stranger that Gov. Bill Haslam would get criticized on the notion that he favors the system, and that he allegedly tried to stack the special court that would hear Hooker’s appeal, just because the retention statute allows the governor to fill vacant appellate judicial seats.
The criticism of Haslam in this instance is as absurd as Hooker’s recycled claim that the judicial retention system violates the state’s Constitution. For starters, the Tennessee Constitution already gives the governor authority to appoint interim judges when there are vacancies in the judiciary at the trial, appellate and Supreme Court levels. There’s no need for him to stack the special panel to retain that authority.
Moreover, the 1972 legislation that established the state’s judicial retention system restricted the governor’s appointment powers by also establishing a 17-member judicial nominating commission to screen judicial candidates and give the governor three candidates from which to choose.
The governor can reject the first slate of three candidates, but he then must pick from a second slate of three names. That process works against a governor who might wish to name an unqualified crony to the bench. Indeed, the process of screening interviews by a large, diverse nominating commission and thorough background checks has elevated the quality of judicial nominees and raised the bar for judicial candidates.
Regardless of these restrictions, Gov. Haslam rightly supports the judicial retention system, as most informed Tennesseans and business leaders do. Their support is merited because the system largely eliminates the prospect of big-money politics in the elections of appellate and Supreme Court justices. In fact, most states have adopted similar judicial retention systems for higher courts for that very reason.
Under Tennessee’s judicial retention system, judges appointed to appellate and Supreme Court positions must stand for popular elections on a yes-no retention ballot. If they get a plurality of the vote, they are duly elected and allowed to serve a full term. If they are not elected, the governor, acting on the nomination commission’s candidates, selects a new judge.
There are critics, beside Hooker, who claim the system violates the state’s Constitutional requirement that judges be elected by “qualified voters.” Tennessee’s retention system, however, has been declared constitutional three times in separate hearings before the Tennessee Supreme Court and a U.S. District court, under the reasoning that popular yes-no retention votes comprise a vote by qualified voters.
Such judicial retention systems properly have been devised to avoid the politicization of justice and the taint of big money in statewide judicial elections. A case in West Virginia’s Supreme Court just five years ago shows the grim pitfall of politicized judicial elections. There, a state Supreme Court candidate, Brent Benjamin, was elected in a race shored up by a $3 million advertising campaign favoring him by mining company executive, Don Blankenship. Benjamin went on to help overturn a $50 million verdict against Blankenship’s Massey Coal Co. by 3-2 vote. Benjamin’s participation in that vote was ultimately reversed by a 5-4 vote in the U.S. Supreme Court on the grounds of excessive partisanship.
National focus on West Virginia’s tainted high court has helped solidify public opposition to moneyed interests and costly campaigns for appellate and Supreme Court justices across the country. Yet Tennessee’s model judicial detention system, though originally promoted by the state’s Republicans and bipartisan Democrats in 1972, still has foes who keep trying to undermine it. An attempt now is in the works to change it to a modified federal plan — which would still allow appointment of judges, but not for life — because Republican lawmakers want to change the high court’s political composition.
Their needless tampering should be defeated, as well, and Haslam should take up that challenge.