published Sunday, September 16th, 2012

Courts shouldn’t be bought

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.

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TonyGottlieb said...

It required a great deal of time for me to understand what the real problem is with the Retention-Election Statute. Simply put, the system undermines the public accountability of all Judges and not simply the appellate courts.

It is not strange that another challenge has been mounted to the State’s Retention Election statute, nor is it strange that the narrative of the challenge is mischaracterized by the author of this editorial. If you really study the history of this issue you learn that the flawed judicial decisions which have been consistently used to defeat the challenges are all really based upon an utterly erroneous decision held in the original case of Higgins vs. Dunn. If you ask any proponent to actually defend it and walk you through the decision on a scholarly basis you will always receive the, “it has been decided by smarter people than you.” An elitist's response. In several years of trying, I have never once heard anyone, on a scholarly basis, actually defend the Higgins decision. Instead, to paraphrase the late Supreme Court Justice, William O. Douglas they are “freez(ing) into the Constitution something that is not there on a stare decisis basis.”

God Bless John Jay Hooker for having the strength of character and the tireless courage to defend our Constitution. John Jay can speak far more eloquently about the constitutional basis for the challenge, such that I recommend that everyone read his Facebook and YouTube postings, on this subject. If you actually take the time to understand what he is saying, you will see that he is fighting something that has corrupted our State’s judicial system, aggregating into the hands of a very few individuals, an enormous political power which controls the entire State’s judicial system. It is hard for me to conceive of anything more political than that so the arguments made that, we are eliminating the influence of money from the third branch of government and our judicial process, are complete baloney.

Proponents would have you believe that constitutionally mandated contested election of Judges is an antiquated system. But if you study history you find out that the Founders heavily debated this issue and they decided upon contested elections. Why? Because without a credible opponent willing to replace someone in power, there is no aggrieved litigant who has the standing nor the resources on their own, to oppose a sitting Judge and stand up for the public interest.

Proponents will argue that they have established sufficient safeguards and they have installed a vetting process. I disagree. As long as the oversight and the discipline of State Court judges is conducted in private without the Public present, appointed by the same elitist group it is suspect to being manipulated and the judicial decisions rendered at the highest level are reflective of an elitist group which controls the access to its power. A power which belongs, under our Constitution, to The People.

September 16, 2012 at 5:31 p.m.
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