published Thursday, May 29th, 2014

Loftin: Court watch: Judges and ideology

By Michael Loftin

Judge: "Sir, are you showing contempt for this court?"

Witness: "No, judge. I'm trying to conceal it."

That's an old legal joke but it's relevant these days. Courts in some states are becoming electoral battlegrounds as politicians launch campaigns intended to ensure the election of judges whose decisions will reflect the "correct" ideology.

Supreme Court Justice Robin Hudson survived a North Carolina primary earlier this month in which more than $1 million, much of it from out of state, was spent in a campaign against her, including one television ad that accused her of being insufficiently tough on child molesters. She faces another election later this year in which the manufactured criticism will likely be even more virulent.

Tennessee could be the next such battleground. Republicans in the Legislature are apparently planning a campaign to defeat three state Supreme Court justices in the Aug. 7 election, when Tennesseans will be asked to vote "yes" or "no" on whether to retain them. The three justices -- Chief Justice Gary Wade and Justices Sharon Lee and Cornelia Clark -- are Democrats, hence their targeting by the GOP.

Andy Sher, Nashville bureau reporter for the Times Free Press, reported recently that Senate Speaker Ron Ramsey "has been sharing a 31-page PowerPoint presentation with business, victims' rights and other groups." The presentation "outlines potential lines of attack, including charges the justices have been 'soft on crime' and anti-business."

Under Tennessee's judicial retention plan, if an appellate court judge or a Supreme Court justice receives a majority of "no" votes, the resulting vacancy will be filled by gubernatorial appointment. Since Justices Wade, Lee and Clark are unopposed, the Republican campaign to unseat them will have to generate voter contempt for Justices Wade, Lee and Clark.

That can only be done by cherry-picking Supreme Court votes that can be translated into attack ads depicting the three justices' decisions in criminal cases as ostensibly "soft on crime," for example. The obvious implication is that Republican appointees to the Supreme Court would be tougher across the board -- the governing criminal laws, proof presented in court and the trial judges' rulings notwithstanding.

It is hard to say which is more contemptible: the slurring of the justices' reputations in an attempt to get three politically obedient appointees to the court, or the sacrifice of Tennessee's highest court on the altar of political expediency.

We apparently can't rely on our timorous governor, Bill Haslam, to derail the campaign by using the weight of his office to defend the court. Sher reported that when the governor was asked why he wasn't going to participate in Ramsey's effort, he replied: "I think on an election like this, I'm trying to think of the best way to put that, to let the candidates themselves speak for why they should be retained. And as the person who would be appointing their replacement, I don't think it's an appropriate role for me to play."

The issue is not that Haslam should be advocating for voters to give the justices a majority of "yes" votes. It is that he should openly oppose a campaign that William "Mickey" Barker, the former state Supreme Court Chief Justice, correctly described as "an attack on the entire judicial system." The governor's apparent inability to understand that is alarming.

The Ramsey effort to make the state Supreme Court an appendage of the Republican Party is not inevitable. If a majority of Tennesseans vote to retain the justices the GOP has targeted, they will provide vital support for Tennessee's legal system and, equally important, an independent judiciary.

Michael Loftin is former editorial page editor of The Chattanooga Times.

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