Supreme Court Retention Clash Likely to Continue

By Bill Dries

Both sides declared victory when the three Tennessee Supreme Court justices were retained by voters in the Thursday, Aug. 7, statewide judicial elections.

Tennessee Supreme Court Justices Sharon Lee, left, Cornelia Clark, next to her, and Chief Justice Gary Wade, second from right, campaigned in Court Square last week. Their supporters included U.S. Rep. Steve Cohen, center, and state Rep. Larry Miller, right of Wade.

(Daily News/Bill Dries)

The votes to retain or replace Chief Justice Gary Wade and Justices Sharon Lee and Cornelia Clark ended with all three being retained for an eight-year term.

But the nature of the campaign was also a victory of sorts for the political forces arrayed to oppose their retention.

The justices and their backers see the retention campaign as part of an effort by the Republican supermajorities in the Tennessee Legislature to exert political control over the court. Opponents of the retention argue the process – which includes a nominating commission, appointments made by the governor, and a review panel that recommends appellate judges for retention – is already political.

The two sides are likely to clash again in the campaign to the Nov. 4 election day.

Lt. Gov. Ron Ramsey has contended that the effort against the retention of Wade, Lee and Clark makes it more likely that voters will support a proposed amendment to the Tennessee Constitution on the November ballot to require legislative approval of future Supreme Court appointments made by the governor.

The amendment is a compromise in which some political forces originally favored and still favor a return to direct contested elections of state appellate court judges similar to the races every eight years for state trial court judicial positions.

Ramsey put up more than $425,000 from his political action committee to fuel the summer campaign against retention. The Republican State Leadership Committee put up another $400,000 as part of the anti-retention effort.

Meanwhile, the three justices together raised $800,000 for their pro-retention campaign.

“For the first time in decades, we had a real election for the Supreme Court,” Ramsey said in a written statement election night congratulating the justices on their retention.

Ramsey added that in their quest for retention, the justices learned “things about our state that you can’t find in any law book.”

Clark agreed that the campaign, which saw the justices campaigning door to door and in churches, was “tumultuous” and “historic” in that regard.

“I hope that nothing ever changes the nature of service on the Supreme Court because every person who comes to the court takes the same oath. And our obligations and responsibilities remain the same,” Clark said in Memphis’ Court Square the day before the election. “I think we come back renewed and energized by the faith Tennesseans have shown in us and by the confidence and words they have asserted to us as we have traveled around.”

But Clark hopes the campaign effort doesn’t repeat itself.

“I hope it will not,” she said. “I hope that the people of Tennessee will speak firmly and say this is not the way the process should work and that justice should not ever be for sale in Tennessee.”

Lee, who campaigned door to door in Hickory Hill, said people she talked with viewed the anti-retention effort as a “power grab.”

“They understand that if you let politics dominate our courts, only the rich and powerful will prevail,” she said the day before the vote. “And that’s not our system of justice. … I think most people by now are aware of it and are very much offended by this power grab.”

But Ramsey argued the result is a higher awareness of the court.

“Because of that,” he said, referring to the campaign’s give and take, “more Tennesseans than ever know the names of our Supreme Court justices and are aware they have a role in deciding who sits on the high court.”

But Wade, Lee and Clark were not that comfortable with the campaign, and neither are those advocates of their retention who are opposed to the constitutional amendment on the November ballot. They believe it at least strains the model for judicial campaigns in which candidates promise to be fair and impartial and don’t go much further.

In the retention campaign, the three justices hit back at claims in anti-retention ads claiming they were liberal jurists. They countered by specifically citing the number of death penalty appeals the court had denied and touting endorsements by law enforcement groups.

“This is not exactly how I intended to spend my summer vacation,” Wade said. “But I think it’s been a rewarding experience and there has been a silver lining. We have learned to be accountable in a more direct way to the people of Tennessee. We only get the most controversial cases at the Supreme Court level and … we only make 50 percent of the people happy when they walk out of the courtroom.”