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VOL. 129 | NO. 143 | Thursday, July 24, 2014

Supreme Court Justices Make Campaign Push

By Bill Dries

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Among the candidates going door to door in Memphis this summer looking for votes was a Tennessee Supreme Court justice.

The three Tennessee Supreme Court justices on the Aug. 7 ballot are campaigning door to door in the yes-no retention elections.

(Daily News File/Lance Murphey)

Sharon Lee, one of three justices seeking re-election in the yes-no retention races on the August ballot, campaigned Saturday, July 19, in Hickory Hill.

And the next day, she attended services at several Memphis churches.

The rare event comes as Lee, Justice Cornelia Clark and Chief Justice Gary Wade face organized opposition to their re-election that includes Lt. Gov. Ron Ramsey. Wade and Clark also have similar campaign schedules that are unusual for incumbents on Tennessee’s highest court.

The last Supreme Court retention race this contentious was in 1996, when Justice Penny White lost her re-election bid against organized opposition that cited her votes on the court against the imposition of the death penalty – specifically the opinion she wrote that same year upholding the conviction in a Memphis death penalty case but throwing out the death sentence.

“I think the lesson we learned from the Penny White campaign is that when an attack is made on the judiciary, we have to fight back,” Lee said. “We have to mount an organized campaign effort to educate the voters. … In her case, she learned of the attack very late. It was almost too late to get organized.”

All three justices told those in Memphis and at other stops across the state that the challenge to their retention is about more than them.

“We’re sort of like the referees in a football game,” Wade said. “We prefer to go unnoticed and let the contestants be the stars of the show and simply do the right thing when we make our decisions. The pressure is on us to defend the dignity and the integrity of the bench and the bar. That’s the pressure, I think. It’s not so much about us as it is about the American concept of balancing the three branches of government so that one doesn’t overwhelm the other.”

The context of the three Supreme Court races on the August ballot is broader in several ways.

It comes as Ramsey and others opposing the re-election of Wade, Clark and Lee are pushing for reforms in the way appellate court judges, including Supreme Court justices, are appointed and elected.

The movement began as a push for the popular election of appellate court judges in races with other candidates. Advocates cited the section of the Tennessee Constitution that called for the election of judges, saying that meant a popular election, not the retention races.

Attorney and one-time Democratic nominee for governor John Jay Hooker continues to pursue that point in court, even though three Supreme Court rulings have determined that retention elections are valid under terms of the Tennessee Constitution.

Meanwhile, other proponents have settled over the years for a series of changes. There was a restructuring of the judicial nominating commission, the body that recommends nominees to the governor. When the commission wasn’t renewed by the state Legislature, Gov. Bill Haslam appointed his own to make recommendations.

And in November, voters across the state will vote on an amendment to the Tennessee Constitution that would require legislative approval of nominees selected by the governor, similar to the method the president and the U.S. Senate use to seat federal judges.

“I think if we lose this election, there will be so much chaos and disarray that it could certainly affect the matter that’s on the November ballot,” Lee said. “I’m really not thinking ahead to Amendment Two at this point.”

The justices told a group of 40 attorneys at the Burch, Porter & Johnson law firm on the first day of early voting last week that the campaign against their retention is an attempt to bring politics into the selection of judges.

“Partisan politics has no place in the courtroom,” Clark told the group. “Justice is not for sale.”

Ramsey contends the process is inherently political already and that contested retention elections legitimizes them and will help the constitutional amendment pass in November.

Meanwhile, Haslam has appointed Judge Holly Kirby of Memphis and Judge Jeff Bivins of Franklin to fill the two vacancies on the state Supreme Court, effective Sept. 1. Bivins was sworn in this month.

Kirby, a judge on the state court of appeals, and Bivins, formerly a judge on the state court of criminal appeals, are both on the August ballot retention races, but not for the Supreme Court. Because of the timing of the departure of Supreme Court Justices Janice Holder and William Koch at the end of their eight-year terms, Bivins and Kirby are on the ballot as seeking re-election to their current positions.

State election officials ruled their appointments to the Supreme Court came too late to remove their names from the ballot in those races.

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