VOL. 130 | NO. 152 | Thursday, August 6, 2015
Ramsey Clear in Push to Politicize Supreme Court
SAM STOCKARD | Nashville Correspondent
Republican Lt. Gov. Ron Ramsey has a penchant for igniting flames of partisanship, and the retirement of Tennessee Supreme Court Justice Gary Wade is no exception.
In this case, Ramsey elicited criticism for injecting politics where some believe political colors shouldn’t be unfurled.
Immediately after Wade’s surprise announcement in mid-July, Ramsey issued a statement congratulating the Democratic-appointed Wade, “a good friend and formidable opponent,” on his retirement.
“I look forward to this historic opportunity to give Tennessee its first ever Republican Supreme Court majority,” Ramsey stated.
If that wasn’t clear enough ...
“The Democrats had over 150 years of de facto control over Tennessee’s judiciary,” Ramsey told The Ledger, The Daily News’ sister publication, this week. “Now it is our turn to choose fair, impartial and independent judges capable of rendering conservative decisions.”
The Blountville senator spent more than $600,000 from his political action committee in 2014 to unseat Wade and two other Supreme Court judges in a retention election, Connie Clark and Sharon Lee, all of whom were appointed by former Gov. Phil Bredesen.
Unlike general sessions, circuit and chancery court judges, who go through popular elections, appellate and high court judges in Tennessee are appointed for eight-year terms, then either retained or released by voters.
Ramsey reportedly considered the judges soft on crime and not pro-business enough. And though all three Supremes won retention after raising more than $1 million and going on a statewide campaign tour, the court ultimately declined to keep Democratic-appointed Attorney General Bob Cooper, replacing him with Republican Herbert Slatery, Gov. Bill Haslam’s former adviser.
Ramsey’s pronouncement, while raising the ire of the legal and judicial community, is quite common.
“It’s a normal part of the political process. Both parties often cite being able to appoint Supreme Court justices, whether it be at the federal or state level, as part of the spoils of victory,” says Middle Tennessee State University political science professor Kent Syler. “Both the Democratic Party and the Republican Party want courts that reflect their political philosophies.
Yet House Rep. Craig Fitzhugh, a Ripley banker and attorney who leads the Democratic minority, says the justice system stands for more than politics as usual.
“In deference to Gov. Ramsey, I believe he’s just confusing this with legislative-type races as he did, I think, with judicial retention from a political standpoint,” Fitzhugh says.
“This is a court system we’re talking about. This is the judicial branch. The symbol of the judicial branch is a lady with a blindfold around her eyes, so politics is not supposed to be at the front and center.”
Fitzhugh clearly isn’t naïve enough to believe politics won’t play a role in judicial-related appointments, but it shouldn’t be the “primary qualification,” he notes, saying Ramsey’s statement was not “appropriate.” If that were the case, this Supreme Court wouldn’t have appointed Slatery, a Republican, he adds.
State Sen. Brian Kelsey, a Germantown Republican and chairman of the Senate Judiciary Committee, takes a different tack, saying a Republican majority on the court should avert judicial “activism.”
“No one wants an active judiciary to be creating law, and I think this will ensure that we have a judiciary that simply calls balls and strikes in Tennessee,” says Kelsey, an attorney.
Kelsey points toward an ongoing case in which a trial judge struck down the governor’s comprehensive tort reform bill passed in 2011, as well as a 1990s decision in which he says an “activist” court mandated creation of the Basic Education Program stemming from the “small schools lawsuit,” which struck down former Gov. Ned McWherter’s education funding formula.
Kelsey also contends state Supreme Court decisions led to the need for constitutional amendments in 2014, one dealing with right-to-life issues and the other with how appellate and high court judges are selected.
“I don’t think those types of amendments will be necessary going forward,” he says.
Ramsey misses mark
Penny White, who was bounced from the Tennessee Supreme Court in 1996, mainly over a ruling on a death-sentence appeal, calls Ramsey’s statement “tragic.”
“Courts are not political bodies. They were never intended to be. Our forefathers didn’t intend that, and we shouldn’t try to transform them into yet another political branch of government,” says White, now a distinguished professor of law at the University of Tennessee.
“I guess the saddest thing is that because Lt. Gov. Ramsey has such a following and such a podium that he can perpetuate a false impression of the role of courts in society by making statements such as the one he made. It’s a very, very unfortunate statement.”
Furthermore, when money becomes the key to holding judicial office it “runs the risk of tainting the institution,” White adds.
And though she understands the sitting state justices had to raise enough funds to battle the campaign by Ramsey and the conservative Koch brothers, who also poured money into the campaign, she believes fundraising and the role of a judge “just don’t mix,” even if the U.S. Supreme Court approved unlimited fundraising for election campaigns.
During the 2014 judicial retention campaign, White raised concerns about the amount of money being spent, and she still says, “the people simply just need to wonder, ‘Why on earth would any outside group or any moneyed interest spend that kind of money to elect a judge?’ unless they really are attempting to buy a justice.”
“While some may wish to revise history, the truth is that politics have always been involved in the judicial branch of government,’’ Ramsey says. “Whether through elections or appointments, Democrats have controlled the judiciary since Reconstruction. This became clear when the first Republican governor in modern times was elected and Democrats moved to protect their control.
“Former Democrat Attorney General Bob Cooper outlined the politics involved in the 1974 court in a 2009 speech to the Supreme Court Historical Society: ‘The Democratic leadership feared that Winfield Dunn, the first Republican governor in 50 years, would appoint a majority of Republican justices, who in turn would appoint a Republican [as] Attorney General, who at that time was a member of the powerful State Building Commission. This was not acceptable. So, the General Assembly removed the Supreme Court from the Modified Missouri Plan during its 1974 session over Governor Dunn’s veto.’”
Capitol Hill tussle
Following passage of the constitutional amendment upholding portions of the Tennessee Plan for the seating of appellate and Supreme Court justices, Gov. Bill Haslam, through an executive order, set up a Council for Judicial Appointments to step in for the Judicial Selection Commission, which played a role as part of state law.
With Wade’s retirement set to take effect in September, the governor’s office will notify the council to start the replacement process.
The Administrative Office of the Courts will accept applications, and the council will interview candidates, then recommend three names to the governor, who will choose a nominee.
“The governor plans to have an appointee ready for consideration when the General Assembly returns in January,” according to officials.
Unlike the previous process, however, the state Legislature holds authority over the appointment and must approve the candidate, based on Amendment 2 passed in November 2014 and an attorney general’s opinion written this spring.
But because of House and Senate disagreement over the enabling legislation for judicial confirmation votes, the Legislature will have to work quickly when it returns to Capitol Hill in January. Officials say a special session before then is highly unlikely over the looming judicial vacancy.
Senate Bill 1 setting up the process for judicial appointments went to a conference committee to iron out differences between the House and Senate last spring, but the two bodies disagree on whether to confirm judicial appointments through separate votes by each chamber or a combined vote as is done with constitutional offices such as secretary of state.
If the Legislature fails to take action within 60 days of convening, Haslam’s appointment would take effect automatically.
“In the Senate, it is in a strange purgatory, where it has neither passed nor failed,” says state Rep. Jon Lundberg, a Bristol Republican who chairs the House Civil Justice Committee.
At the close of the 2015 session, nearly every senator abstained on the vote, rather than killing the bill. They knew it would be important, Lundberg says, but they didn’t know it would be needed this soon.
The sticking point is control.
“Candidly, the Senate, I believe, felt insecure because there are 33 of them and 99 House members, so their perception, and I think it was inaccurate, was that it would dilute their power,” Lundberg says.
Kelsey confirms the Senate rejected a joint vote because it reduced the upper chamber’s votes to a third of the House’s.
“But when we’re passing bills, the Senate and the House get an equal say, and I think the House will be OK with having an equal say,” Kelsey adds. He notes the Legislature intentionally avoided the phrase “joint vote” when drafting Amendment 2.
Lundberg, on the other hand, says a combined vote will help make the process less political and argues multiple votes will allow the doubling of “political shenanigans, because you’ll have groups lobbying each body.”
Despite the rift, Kelsey says he has no doubt the General Assembly will “act swiftly” in January to pass a confirmation matter. Otherwise, the nominee will be confirmed automatically on March 12, and he points out, “The Legislature certainly doesn’t not want to abdicate its duty to confirm or not to confirm.”
Even so, the seat could be empty for several months, and with Wade resigning before the end of his term, the replacement justice will be up for retention within two years at the next even-year August election, according to Kelsey.
If the appointment had been made at the end of a full term, then the retention would have been held after an eight-year term, he says.
Haslam kept “a sense of integrity” in the judicial selection process by using executive authority to create the Council for Judicial Appointments, White says.
“But when the Legislature goes back in and finally defines the procedure the Amendment 2 entitles them to define, it’s up for grabs,” she explains. “I’m hoping they do the right thing and keep the courts apolitical and not place them just as another political branch. That remains to be seen.”
Maintaining three separate, independent branches of government is crucial to the state and nation because concentrating all of the power in the same body leads to “tyranny,” White contends.
“And it appears to me maybe we’re moving too close to putting all the power in one set of hands.”
As for Kelsey’s statement about “judicial activists,” White calls that a “label” used by politicians when a court opinion doesn’t mesh with their point of view.
She asks whether the U.S. Supreme Court became an “activist court” based on its rulings on same-sex marriage and upholding federal exchanges for the Affordable Care Act. (It must be noted most Republican leaders voiced oppositions to those decisions.)
“Again, just remember, throughout history, courts have been the body responsible for maintaining some check on renegade power. Was it an activist court that said ‘separate is not equal’ in Brown vs. Board of Education?
“Was that an activist court or was that a court that maintained equal rights and took its position as a check on racism seriously?” she asks.
MTSU’s Syler points out appointing Supreme Court justices “is certainly not an exact science” and comes with no guarantee the justices will adhere to the appointing party’s philosophy.
It goes without saying Ramsey likely will want a more conservative candidate than Haslam, a moderate.
For instance, two opinions of U.S. Chief Justice John Roberts, a Bush appointee, on Affordable Care Act issues, conflict with the wishes of most Republicans to overturn the health care law.
Likewise, U.S. Supreme Court Justice Anthony Kennedy, appointed by the first President Bush, sided with the majority this summer on same-sex marriage and federal health-care exchanges.
Fitzhugh says the state Supreme Court is supposed to follow the law the Legislature provides, and for the most part Republican laws have been passed in the last few years. With that in mind, he points to the ultimate responsibility for the courts.
“I don’t think we have a liberal justice system,” Fitzhugh says. “I think we have a fair justice system, and I think that’s what we should go for, instead of a conservative or liberal or left wing or right wing. It should be fair and equally protect all.”
Sam Stockard can be reached at email@example.com.