Reject the politics; retain justices

Reject the politics; retain justices

August 1st, 2014 in Opinion Free Press

Since 1978, Tennesseans have gone back and forth in electing governors for two consecutive terms from first the Republican and then the Democrat parties. Whoever is governor when there is a state Supreme Court justice opening appoints the new justice. It's the same way for the president of the United States and a United States Supreme Court justice.

If the governor, or the president, is a Republican, he appoints more conservative justices. If the governor, or the president, is a Democrat, she appoints more liberal judges. Although the Founding Fathers probably couldn't foresee today's hyper-partisanship, it's the system they set up.

Today, Tennessee state Senate Speaker Ron Ramsey and several hyper-conservative groups would like all that to change. For all intents and purposes, they'd like a court which, as Ramsey said in an interview, "thinks like me."

The problem with Supreme Court justices is, even if they're appointed by a president (or governor) of the same party, they don't always think like the president or governor who appoints them.

Take the 1973 U.S. Supreme Court Roe v. Wade decision, for instance. Of the seven justices who voted that a right to privacy under the due process clause of the 14th amendment extended to a woman's decision to have an abortion, five were appointed by Republicans.

Or, in the more recent U.S. Supreme Court decision in which the court ruled the Affordable Care Act is constitutional because it could be considered a tax, of the five justices who voted in the affirmative, the deciding vote was cast by Republican-appointed Chief Justice John Roberts.

The justices are like Forrest Gump's proverbial box of chocolates: You never know what you are going to get.

So voting not to retain a triumvirate of justices (Connie Clark, Sharon Lee and Gary Wade), all appointed by former Democrat Gov. Phil Bredesen, because of their ruling in a specific case and because of the dislike of decisions made by justices-appointed state Attorney General Robert E. Cooper seems narrow-minded indeed.

We don't believe any one decision, or the appointment of Cooper, add up to overwhelming evidence the justices do not need to be retained. We endorse retaining them.

Besides, Cooper's term is up Aug. 31, the three justices are 60 or older, and a referendum will be before voters in November that would give state legislators -- including Ramsey -- the right to reject a governor's choice for Supreme Court justice or appellate court judge if they don't find the choice palatable.

It's interesting to note that Ramsey's first campaign foray toward replacing the justices earlier this year was made because they were supposedly "soft on crime." One particular 2011 decision was cited in which the court vacated a death sentence for a convicted murderer, but a life prison sentence eventually was given.

That tact eventually gave way to the latest ones, paid for by various groups, in which the justices vaguely are said to be "supporting a liberal agenda that doesn't reflect the will of Tennesseans," that "trial lawyers are trying to pack the Tennessee Supreme Court with liberal justices" and that the court doesn't "fight Obamacare."

None of the reasons even hold water. No specific "liberal agenda" is ever alleged, it would be hard for trial lawyers to pack the court when the governor is a conservative Republican and the court has never heard a case or ruled on Obamacare.

Again, one of their main targets is Cooper, who was not persuaded to add Tennessee to the 28 states that chose to fight the Affordable Care Act in court. The attorney general himself has said he made a "conservative" decision not to spend taxpayer dollars on the fight during difficult economic times for the state.

Only once in Tennessee history was a Supreme Court justice sent packing from her post in a retain/don't retain vote. That was in 1996, when Justice Penny White was ousted.

As a recent appointee, she was the only justice up for a retention vote that year, and her one death penalty case on the court proved to be her undoing. She had been one of three ayes in a 3-2 vote to overturn the death penalty -- though the conviction remained -- in a case where a woman was raped and murdered, saying the sentence did not meet the law's specific requirements for the ultimate penalty. She later said had the death sentence been "imposed in accordance with the law," she would have voted for it.

The campaign against Justices Clark, Wade and Lee, who have upheld 90 percent of death penalty cases, is almost entirely politically driven. Reject the politics; retain the justices.