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Assessing the Endorsements in the TN Judicial Retention Elections

The campaign over retention elections for Tennessee's Supreme Court justices is in high gear. Here's a rundown of endorsements for and against retention (drawn largely from the Facebook page of the anti-retention group and KeepConnieClark.com, which has an extensive list).

Retain:

District Attorneys Representing 32 TN Counties

Tennessee Conservative Union

The Tennessee State Fraternal Order of Police

The Knoxville News-Sentinel

Knoxville Executive Women's Association

Knoxville Metro Pulse

The Tullahoma News

The Citizen Tribune, Morristown

The Chattanooga Times Free Press

Johnson City Press

Kingsport Times-News

Memphis Commercial Appeal

The Memphis Flyer

Sevierville Mountain Press

The Tennessean

Bledsoe County Bar Association

Bristol Bar Association

Dekalb County Bar Association

Hamblen County Bar Association

Kingsport Bar Association

McMinn County Bar Association

Monroe County Bar Association

Montgomery County Bar Association

Nashville Bar Association

Putnam County Bar Association

Sevier County Bar Association

Tipton County Bar Association

Upper Cumberland Young Lawyers Association

Washington County Bar Association

White County Bar Association

Tennessee Bar Association - members overwhelmingly support

Memphis Bar Association - members overwhelmingly support

East Tennessee Lawyers’ Association for Women

Tennessee Chapter of the American Board of Trial Advocates

Bone McCallester Norton, PLLC

Against:

The Tennessee Forum - citing Obamacare, a matter that has not been before the TN Supreme Court

Tennessee Right to Life - citing a 2000 opinion from before these justices were on the Court

Americans for Prosperity - out-of-state special interest

Republican State Leadership Committee - National organization, not in-state

Tennesseans for Judicial Accountability - not to be confused with the Judicial Performance Evaluation Commission.

The Judicial Performance Evaluation Commission, the group officially charged with reviewing the performance of Tennessee judges (and appointed by opposition leader Ron Ramsey and his colleague Beth Harwell), overwhelmingly support the retention of these judges.

Lacking Substance, Court Opponents Try Name Calling

Here's the argument that opponents of the three Tennessee Supreme Court justices up for retention are making: "they're liberal!" They say it over and over, with no substantiation. They throw in weasel words like "Obamacare" and make vague, fact-less assertions that the justices are "soft on crime." And did they mention that they're liberal!

But just repeating something over and over doesn't make it true. These judges have a large body of work on the court, and if they were as liberal and out-of-touch with Tennessee values as opponents claim, then surely opponents would be able to point to some of their decisions as proof.

The truth is that these judges have a strong record of upholding the law with the fairness that Tennesseans expect from their courts. Based on this record, they've received endorsements from bi-partisan groups accross the state.

So while the argument against these judges boils down to name-calling, the argument to keep them is that they are fair and good and well-respected.

Seems like an easy choice.

Show Some Respect, Mr. McCormick

In a recent article at timesfreepress.com, State House Majority Leader Gerald McCormick is quoted about his opposition to three TN Supreme Court justices up for retention. His comments show a lack of knowledge and respect for the justices. He is quoted as referring to Justices Gary Wade, Cornelia Clark, and Sharon Lee as "these guys and girls."

Mr. McCormick, there are two women and one man in this group of justices you're attacking. Getting your numbers wrong is one thing, but referring to Justices Clark and Lee as "girls" is disrespectful and offensive. These justices are honorable public servants with distingushed careers. They deserve respect, and Tennesseans deserve a House Majority Leader who can show it.

Ramsey Lies About Funding Campaign

In May, Ron Ramsey told reporter Phil Williams that he would not fund the campaign to oust Tennessee Supreme Court justices:

Q: How much money will it take? RAMSEY: Who knows. I've not gotten into that side. I'm not raising money for this. I've not raised a dime and I'm not planning on raise a dime. I'm just giving the information out there. I'm not making a contribution out of my PAC, I'm not making a contribution out of my campaign account.

Today, Williams reports that new financial disclosures show that Ramsey is in fact the main contributor, giving $425,000 of the $446,329 raised by the Tennessee Forum.

Add this to the long list of Ramsey's lies in this campaign.

Fact Checking Claims About the TN Supreme Court

A new TV attack ad against members of the TN Supreme Court gets the facts wrong. One lie and one misrepresentation makes for a very deceitful ad.

The ad says the justices "advanced Obamacare." The TN Supreme Court, however, has never ruled on Obama's health law. It is a federal law, and this is the state supreme court. This is either a lie or an egregious misunderstanding of government.

The ad also calls the Justices "liberal," citing one capital case in which the court ordered the trial court to evaluate the defendant's mental condition. They reached this decision by following the Constitution, the law, and the facts of the case. That's not liberal, that's the Court's job. And focusing on this one case ignores the body of their work: the justices up for retention have upheld about 90 percent of death penalty cases before them.

Check out Phil Williams at News Channel 5 and Keel Hunt in The Tennessean for more on this untrue ad.

Accountability and Fair Courts

A group called Tennesseans for Judicial Accountability is behind some recent attacks on Tennessee Supreme Court justices. Phil Williams from News Channel 5 Investigates sat down for an interview with two men behind the group, which has been raising money and urging voters to oust the current justices. It's a great interview that highlights many of the false claims this group is making against the justices. To his credit, Grant Everett Starrett, one of the group's organizers, did admit at least one mistake and also promised that his group would "correct anything that we've put out there that's wrong." If they want accountability, they can start by correcting the inaccurate and misleadinng claims they've made against current justices.

#faircourts

Why Doesn't Ron Ramsey Want Tennesseans to Have Fair Courts?

Gerald McCormick, the Republican House majority leader, has jumped on Ron Ramsey's anti-courts bandwagon. His recent comments highlight the absurdity of this attack on these non-partisan positions within the judicial branch of TN government.

When Ramsey was caught misrepresenting the facts about the court by cherry picking half-truths, he claimed this was OK because the justices could have their say in a campaign of their own. Now, McCormick is so angry that these judges have been telling the truth in their defense, he's flip-flopping on his pledge to support Amendment 2 regarding judicial selection. Confused? I'll let Ramsey and McCormick try to straighten this out in their own words:

Ramsey: "I hope they'll be able to tell their side of the story, we'll tell our side and may the best man win."

McCormick: "I may just come out in favor of direct elections of Supreme Court judges after watching these three guys fight so hard to keep their jobs."

Politics in the courts? These guys were for it before they were against it.

#faircourts

Justices are "fair & unbiased; should be retained."

In the current campaign against Tennessee's Supreme Court justices, there has so far been a lot of sound and fury, but no reason Tennesseans shouldn't vote "retain." The "soft on crime" and "anti-business" attacks have been thoroughly debunked. False charges about ethics violations have also been dismissed.

Now Frank Daniels has proposed one of the most baffling arguments yet: don't retain the current justices because TN voters rejected a constitutional amendment about selecting judges in 1978. Seriously. Lacking any real argument against retention, he suggests throwing out fair and good judges because of something that happened 36 years ago.

Spotting the flaw in this line of argument, Nashville lawyer Bob Mendes jumped on Twitter to help Daniels out. I'll let him take it from here:

@fdanielsiii Your complaint gets resolved in Nov w/ proposed amendment; Justices on Aug 7 are fair &unbiased; should be retained.

— Bob Mendes (@mendesbob)

June 1, 2014

@mendesbob 36 years later Tennesseans get to comment on the political/legal establishment's tortured interpretation of Article VI.

— Frank Daniels III (@fdanielsiii)

June 1, 2014

@fdanielsiii Too long a wait; but removing a generation of fair & unbiased judges who defend Constitution for a living b4 Nov makes no sense

— Bob Mendes (@mendesbob)

June 1, 2014

Will History Repeat Itself?

In 1996, Tennessee Supreme Court Justice Penny White was the target of a misinformation campaign. False claims against White resulted in the end of her judicial career.

Be wary of this kind of attack - Lt. Gov. Ron Ramsey has already admitted he won't tell the whole truth in his campaign to oust current justices.

Here is some history, from Stephen B. Bright's "Political Attacks on the Judiciary."

[t]he Republican Party also mailed a brochure to voters entitled, Just Say NO! with the slogan, “Vote for Capital Punishment by Voting NO on August 1 for Supreme Court Justice Penny White.” Inside, the brochure described three cases to demonstrate that Justice White “puts the rights of criminals before the rights of victims.” It described the case of Richard Odom as follows: “Richard Odom was convicted of repeatedly raping and stabbing to death a 78 year old Memphis woman. However, Penny White felt the crime wasn’t heinous enough for the death penalty--so she struck it down.”

Neither mailing disclosed that Richard Odom’s case was reversed because all five members of the Tennessee Supreme Court agreed that there had been at least one legal error which required a new sentencing hearing. The court affirmed Odom’s conviction and remanded his case for a new sentencing hearing. No member of the court expressed the view that the crime was not heinous enough to warrant the death penalty. Indeed, the remand for a new sentencing hearing at which a jury would decide between the death penalty and life imprisonment made it quite clear that the court did not find the death penalty inappropriate for Odom. Justice White did not write the majority opinion, a concurring opinion, or a dissenting opinion. Yet Tennessee voters were led to believe that she had personally struck down Odom’s death penalty because she did not think the crime was “heinous enough.”

White’s opponents also blamed her for the fact that Tennessee has not carried out any executions in the last thirty-six years. But the Odom case was the only capital case which came before the Court during White’s nineteen-month tenure. Tennessee’s political leaders did not call attention to this distortion; instead, Tennessee’s governor and both its United States Senators, all Republicans, opposed White.

#faircourts

The Signal Mountain Republican, who served nearly seven years on the state’s highest court, called the effort led by Senate Speaker Ron Ramsey, R-Blountville, a “frightening” attempt to turn the judicial branch into another “partisan branch of government.”

“We have three branches of government,” Barker said in an interview. “Each are to be co-equal and each are to be separate. Two of those branches are political branches — the legislative and the executive. And the judicial branch is nonpolitical.”

Gov. Bill Haslam said Wednesday that he sees "danger" in an anticipated Republican attack on three state Supreme Court justices.

#faircourts

Retired Judges Stand Up for Fair Courts

On a local and national level, former judges are standing up to defend America's system of fair and impartial courts against those who are trying to corrupt the system for political gains. Here in Tennessee, retiring Justice William C. Koch said he doesn't want to see politics and outside money in TN courts.

"When we start getting into partisan races or contested races, that is going to introduce the issue of campaign funding, and in other states where there is campaign funding people think justice can be bought," Koch said. "I don't think justice should be bought."

In an op-ed in yesterday's Washington Post, former chief justice of the Arizona Supreme Court Ruth McGregor and former chief justice of the Indiana Supreme Court Randall Shephard are doing the same:

As lifetime jurists and former chief justices of the supreme courts of Arizona and Indiana, we believe our treasured American system of checks and balances is harmed when our courts are threatened with intimidation. Our courts were designed to be the branch of government most insulated from politics. [...]

If judges cannot make life-or-death decisions based on the law without looking over their shoulders for threats of retaliation, they cannot uphold the Constitution and protect Americans’ rights.

Destroying the fairness of our courts is a threat to our basic freedoms.

#faircourts #fairandfree #tennessee

Frank Daniels is Confused about the TN Supreme Court

Letter to the editor of The Tennessean in response to this op-ed by Frank Daniels III:

Mr. Daniels,

Your op-ed of May 11 gets the facts wrong and draws an incomprehensible conclusion about the judicial retention election this August. You claim that the Supreme Court allowed the Judicial Performance Evaluation Commission to ignore a ruling by Judge Hamilton Gayden. This is not true.

Contrary to your statements, the issue of the Judicial Evaluation Commission has not been appealed to the Supreme Court. At present, John Jay Hooker is still delaying the proceedings in the Court of Appeals by arguing over which judges on the Court of Appeals must recuse themselves. In fact, if the Judicial Evaluation Commission issue does reach the Supreme Court, Attorney Hooker will likely ask the entire court to recuse themselves as he has promised to do for any action he brings in front of the court. None of the justices you claim should lose their job over this case could have heard this case in the first place.

In addition, you failed to mention that Lt. Gov. Ron Ramsey and Speaker Beth Harwell, not members of the Supreme Court, appoint the Judicial Performance Evaluation Commission. Ramsey has failed to nominate any women to the panel. He himself, not the Supreme Court, is the one flagrantly violating the law you cite.

Based on this misunderstanding of the facts, you conclude that voters should not retain the three justices up for retention. This conclusion confuses two separate issues, selection and retention. When voters go to the polls this August, they are asked one question, have these justices performed their duties fairly. To suggest that voters treat this retention election as a referendum on the judicial selection process is both misleading and unfair to the current justices. As you rightfully note in your article, Lt. Gov. Ron Ramsey fails to make a coherent case against the current justices. Unless you can present any other evidence that these justices shouldn't be retained based on their performance, it is dishonest to urge voters not to retain these public servants.

Sincerely,

Jay Watson

Why politics and courts don't mix.

Great Op-Ed from Jessica A. Levinson on why we should keep courts fair by keeping politics out. Here's the takeaway:

It is inherently knotty to ask judges and would-be judges to take part in political campaigns. Judges should be making decisions by applying the law to the facts. Sometimes these decisions will be unpopular. That is often as it should be. Judges apply many laws meant to protect the rights of the minority, not the majority. Judges should not have to consider how their decisions would play in the next election — with voters or potential donors.

Read the whole thing.

Ramsey Interview Raises New Questions

A day after uncovering a document showing Lt. Gov. Ron Ramsey and outside money groups are planning to attack current Supreme Court justices, Phil Williams interviewed Ramsey to let him answer some of the questions this raises. Unfortunately, Ramsey's response raises more questions than it answers. Take a look at the videos of the interview.

Ramsey thinks that TN should make its courts political by making judges fight it out on the campaign trail. It doesn't take more than middle school civics to see the problem here: judges aren't politicians. In fact, our judicial system demands that judges NOT be politicians. They can't make campaign promises or pre-judge issues. These are common sense, traditional values that have kept TN courts fair for years.

Ramsey fails to mention that TN has a method to decide if Judges have been doing a good job. It's called the Judicial Performance Evaluation Commission, and I'm sure Ramsey knows about it because he has personally appointed members of the panel. These experts, who Ramsey praised upon appointment, have issued a public report supprting all the current justices. Unlike Ramsey, it seems the JPEC looked at the body of work by these justices and didn't simply cherry pick half-truths.

Which leaves us with the big question on Ramsey, how can he get this basic civics so wrong? I see two explanations:

1. Ramsey doesn't actually understand how the court works. He doesn't understand that our founders created a system where judges follow the law and not politics, and he can't see the obvious conflicts of interest that would arise from politicizing our courts.

2. Ramsey knows he's throwing out traditional fair court values, he just doesn't care. Ramsey sees an opportunity for political gain by remaking the TN Supreme Court and he's going to take it, even though it means abandoning important principles of justice and fairness.

Maybe Phil Williams will have an opportunity to ask Ramsey in his next interview. Or maybe I'll just ask @RonRamsey myself on Twitter.

#faircourts

New Document Reveals Attack on TN Courts

A new confidential document reveals lawmakers' plans to oust current Tennessee Supreme Court justices and remake the court, reports Phil Williams of NewsChannel 5 Investigates. The document, prepared by Lt. Governor Ron Ramsey's office, outlines both strategies for attacking current justices and the motives behind this campaign.

This document and Ramsey's public statements on this issue make 3 things now clear:

The plan relies on painting the current members of the court as "soft on crime" or "anti-business" by picking out a handful of decisions by current members of the court.

A strong motivation for this campaign is the attempt to replace current Attorney General Bob Cooper. The AG is appointed by the Supreme Court, and a new court could replace Cooper when his term is up at the end of August.

The plan specifically disregards the findings of the Judicial Performance Evaluation Commission which recommends the current justices be retained. Even though Ramsey himself appointed members of the JPEC, he is now willing to throw out their recommendations. Clearly Ramsey likes to change the rules when they get in the way of his plans.

The bottom line: Ramsey puts politics and money ahead of fair courts. Lt. Governor Ramsey and the dark money groups he is affiliated with want to replace the current justices, whose fair and impartial decisions he dislikes, with justices whose decisions will be influenced by money and political connections. In the process, Ramsey is willing to trample the reputations of current justices and throw away Tennessee's history of fair courts.

Let's not allow money and self interest to take over the judicial branch - Fair courts matter to Tennessee.

"According to UM law professor Dr. Steve Mulroy, there is 'a coordinated effort to target them to get them off the Supreme Court.'"

#FairCourtsTN #faircourts

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