STATE OF T ENNESSEE

HOUSE OF REFRESENTATIVES

GERAW MCCORMlCK

MAJoruw LEADER

Tennessee's Judiciary has Always Been Political

In the early 1970's, Tennessee abandoned elections as the method for selecting state appellate and Supreme Court judges, even though the elections are clearly called for by the Tennessee Constitution. The 100+ year practice of judicial elections was replaced by a system called the Missouri Plan. "While the Missouri Plan was created with the hopes ofinsulating judges from politics, and travels under the false front of 'merit selection,' it has instead transferred power to state bar associations while shielding the selection process from public scrutiny."! As demonstrated in a June 24, 2014 state senate hearing, the result has been a selection process dominated by partisan politics where only a chosen few have any input into who rules the powerful judicial branch of Tennessee's government. Let us explain.

Supposedly, every eight years, Tennesseans go to the polls and elect their appellate and Supreme Court judges. Termed a "retention election," voters' choices are limited to "retain" or "replace" the judges who appear on the ballot. Judges must meet two requirements to get on the ballot for the election. First, they must be an incumbent judge. Second, they must be approved by the Judicial Performance Evaluation Commission or "JPEC" (formerly the Judicial Evaluation Commission).

JPEC was intended to tell voters whether or not the incumbent judges arc "qualified." If the JPEC members vote that a judge is qualified, then that judge goes on the "retention ballot" and runs for re-election unopposed. If the JPEC members determine the judge is not qualified, then said judge is omitted from the retention ballot. So JPEC literally determines which judges we citizens have the opportunity to vote for by weeding out the bad judges and keeping the good judges.

The only problem is that JPEC, in its entire history, has never found a bad judge. 7. After the June 24th hearing this year in Nashville, Chaired by Scnator Mike Bell, we know why. The system is rigged so that no judge ever loses his or her job.

The Legislature recognized the problem and changed the composition of JPEC in 2012 to be bi­partisan and include three non-lawyers.) In October 2013, the new JPEC recommended replacemcnt of three Democratic judges in the first of two bi-partisan confidential votes. It was the first time in history that JPEC had votcd to replace judges.

rep .gerald .mcconnick@capitol.tn .gov • (615) 741-2548 • I8A Legislative Plaza, Nashville, TN 37243

According to testimony by JPEC member Woody Woodruff, immediately after the confidential vote, he began receiving calls from lawyers, lobbyists and judges bringing political pressure for JPEC to reverse its position on the three judges deemed unqualified by the bi-partisan panel. Further, Woodruff stated that the leak of the confidential vote was traced from a staff member to Chief Justice Gary Wade4

Coinciding with the intense politicking of JPEC, Chief Justice Gary Wade, the most powerful judge in the state, went public with his campaign, confirming with the Knoxville News Sentinel that "he believes all three judges receiving negative recommendations from JPEC deserve new terms."s The lobbying campaign achieved its goal. JPEC reversed its initial vote and put two of the judges on the ballot. (The third judge chose to retire).

Consequently, two Democratic appellate judges who a bi-partisan commission initially said were unqualified will be on the August 7 ballot running unopposed. These judges only made it on to the ballot after a concerted lobbying effort was made to interfere with the evaluation process. These same judges will almost certainly keep their jobs. As Senator Mike Bell, Chairman of the Government Operation Committee, said in the hearing, Chief Judge Wade's actions were the epitome of politics.4

"The hypocrisy of the chief justice (Wade) amazes me," Bell said. " ... He talks about the fear of putting politics in the process of choosing judges if we do what the constitution says. And yet when the system he defends works and gives negative recommendations to three judges, hc ... tries to put pressure on the Evaluation Commission members to change their vote."

"1 guess they think it's okay for appointed judges to be involved in the political process on how we choose judges but not okay for the citizens of Tennessee." 6

Beware of those who say they want to keep the judiciary independent and free from politics. If it had been free from politics, why has cvery singlc Attorney General chosen by the Supreme Court since Reconstruction been a Democrat? 7 And why have only three of the 22 Supreme Court justices serving in the last forty years been Republicans'! R

As the Executive Director of the Administrative Office of the Courts testified at the June 24th hearing, "This has been a political process for a long time." 9

Representative Gerald McCormick

Representative Richard Floyd

Representative Susan Lynn Representative Dennis Powers

~uR. _?f:~ Representative Rick Womick

I. " Judges, Politics and George Soros: Judicial selection shouldn't be left to the lawyers guild." . The Wall Street Journal 31 March 20l3. Web July 2014.

2. "A judge recommended for replacement still may run for a new eight-year term - but must do so in a contested election. This has never happened." The Tennessee Journal. November 15, 2013.

3. State of Tennessee. Public Chapter No. 953. Approved May 10, 2012. Web.[http:// wapp.capitol .tn.gov/apps/BillInfolDefault.aspx?BillNumber=SB3652&ga=1 07]

4. "Ad Hoc Committee on Judicial Accountability." Tennessee General Assembly. June 24, 2014. Senator Mike Bell, Chairman. Web. [http://tnga.granicus.com!MediaPlayer.php?view_id= 266&clip_id=9522]

5. Humphrey, Tom. "Top judges, evaluation commission members at odds over negative recommendations." Knoxville News Sentinel, 10 Nov. 2013. Web. [http://knoxblogs.com/ humphreyhill/20 13/1111 O/topj udges-support -colleagues-negative-evaluation-commission­evaluations/]

6. Humphrey, Tom. "Judges say negative votes not about politics." Knoxville News Sentinel. 24 Nov. 2013. Web. [http://www.knoxnews.com!news/2013/nov/24/judges-say-negative-votes-not­about-politics/]

7. Humphrey, Tom. "On a partisan retention election for judges and the options down the road­let the Legislature decide." Knoxville News Sentinel. 18 May 2014. Web. [http://knoxblogs.com/ humphreyhill/20 14/05/ 18/sunday-column-partisan-retention-election-judges-options-road -let­legislature-decide/]

8. Ely, James W., ed. A History of the Tennessee Supreme Caliri. University of Tennessee Press, 2004.

E. Riley Anderson, 1990-2006, Democrat, p. 305 William M. Barker, 1995-2009, Rcpub, p. 271 Adolpho A. Birch, 1993-2006, Democrat, p. 271 Ray L. Brock, Jr., 1974-1987, Democrat, p. 271 George H. Brown, Jr. 1980-1980, Republican, p. 329 Hamilton S. Burnett, 1947-1974, Democrat, p. 232 Cornelia A. Clark, 2005, Democrat Robert E. Cooper, 1974-1990, Democrat, p. 271 Martha Daughtrey, 1990-1993, Democrat, p. 306 Frank F. Drowota, 1980-2005, Democrat, p. 271 Ross W. Dyer, 1961-1974, Democrat, p. 232 William Fones, 1973-1990, Democrat, p. 271 William J. Harbison, 1974-1990, Democrat, p.271 Joe E. Hemy, 1974-1980, Democrat, p.271 Janice M. Holder, 1996-2014, Independent, p.271 AllisonB. Humphreys, 1967-1974, Democrat, p.232 William C. Koch, Jr., 2007-2014, Republican, Sharon Gail Lee, 2009-present, Democrat Charles H. O'Brien, 1987-1994, Dcmocrat, p.272 Lyle Reid, 1990-1998, Democrat, p.305 Gary R. Wade, 2006-present, Democrat PelllY J. White, 1994-1996, Democrat, p. 310

9. Daniels III, Frank. "Hold your nose: the 'retention' election is getting smelly." The Tennessean, 25 June 2014. Web. [http://www.tennessean.com/story/opinion/columnists/frank­daniels/20 14/06/25lhoJd -nose-rctcntion-clcction-gctting-smell yl113465 0 11]