Lt. Gov. Ron Ramsey last week accused the Chief Justice of the Tennessee Supreme Court of unethical conduct; at a Kiwanis Club meeting in Memphis, Justice Janice Holder had spoken in favor of renewing current judicial-selection methods.
Under current law expiring July 1, vacancies in appellate courts are filled by the governor and a 17-member panel, the Judicial Selection Committee, composed primarily of attorneys. The panel nominates three candidates, then the governor chooses an appointee or rejects the slate in favor of another three. The only role for voters is a retention election every eight years. This is known as the "Tennessee Plan," and it was instituted in 1974.
Tennessee still elects judges in the lower courts, and several nearby states retain direct election even at the level of the Supreme Court. In West Virginia the Supreme Court has been forced to rehear a major case after photographs surfaced of Chief Justice Spike Maynard on vacation in the Mediterranean with Massey Energy CEO Don Blankenship. Blankenship spent millions in recent years campaigning against certain judges and for others. Observers criticized Maynard's personal and financial ties to Blankenship, but he refused to recuse himself from cases involving the coal giant, and in November the state's high court overturned a $60 million award against Massey Energy. Photographs proved too damning, however, and Maynard subsequently recused himself from all Massey cases, including the rehearing of the November ruling.
Closer to home, Blount County witnessed a smear campaign last year against Judge Mike Meares, a Democrat appointed to a vacancy by Gov. Phil Bredesen. Republicans in the county bar association and holding courthouse offices claimed he was behind on his caseload. Both the Knoxville and Maryville dailies printed the allegations but made little effort to clear the record when the numbers showed Meares had actually eaten into the backlog that accumulated while the seat was vacant.
Both party politics and campaign fund-raising compromise justice. Ramsey's instinct is correct; it is usually improper for a sitting judge to comment on legislation. As quoted in the News Sentinel, Ramsey 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. They're saying we don't need politics in this, yet what are they doing? Lobbying. Ironic."
Unfortunately, Ramsey's instincts led him astray. Lobbying takes place between a legislator and an advocate, not between a Kiwanis Club and their guest speaker. The code of judicial ethics encourages judges to speak publicly about the structure and function of the judiciary. Furthermore, Holder appealed to principle rather than authority, so what she said stands regardless of who said it.
She compared judges to basketball referees and said if they campaigned to officiate a game "we would wonder about their fairness regardless of the calls they made." Both Holder and Ramsey realize that judges must remain impartial, but it is Ramsey who proposes eroding protections against politics in the judiciary. He wants to eliminate the Judicial Selection Committee, but this committee is a critical buffer against politics. With 17 members, the influence of any given faction or interest group gets diluted, so a judge's professional qualifications tend to outweigh parochial and political concerns.
Ramsey claims his proposal is a compromise between renewing the Tennessee Plan and dropping it, but it is the integrity of the judiciary he is compromising. Tennessee could do more to ensure impartial justice. It could make judicial elections nonpartisan. It could adopt selection committees for lower courts. Only in the regressive political climate Republicans have created in Nashville could Ramsey's views be seen as a compromise.
Judges are supposed to be beholden to the state constitution and the law, not to the governor or even the popular will. Renewing the Tennessee Plan is the only option before the Legislature that will not taint judges with political obligations. It should be renewed, and legislators serious about quality justice should look at ways to improve, not erode, the independence of Tennessee judges.