Calling it a threat to their independence and integrity, judges on the state's highest courts are descending into the muddy political trenches of the legislature to try to put down a conservative populist uprising.
The judges are apoplectic over the possibility of a change in state law that they say would put justice up for sale in Tennessee. It would end their comfy, hard-to-lose yes/no elections and force them to hit the hustings like common politicians to shake down fat cats, cut backroom deals, kiss babies, talk tough in TV ads and promise the moon to voters in competitive campaigns.
"I cannot think of anything more disturbing about the future of the judiciary than to have these court races subjected to partisan, highly financed elections where basically whoever's able to generate the most in contributions is going to be the likely winner," state Supreme Court Justice Gary Wade tells the Scene. "A great judge is like a referee in a football game. To have one side or the other cheering for the referee is a little bit unseemly to me."
As allies in this coming legislative war, the judges can count on many of the state's most prominent attorneys. A group of lawyers and retired judges calling itself Tennesseans for Fair & Impartial Courts already is hitting up the biggest law firms for cash to fund the fight. That's drawn criticism because these firms argue cases in the state's appellate courts and seem to have little choice but to give to the judges' lobbying effort.
"It does have the appearance of impropriety," says Sen. Mike Bell, a Republican from Riceville in southeast Tennessee who wants to force judges to run in real elections. "These law firms go before the very courts that this system tends to protect because it lets the judges run for re-election without having to face any competition.
"They're trying to protect the system that they control right now. They don't want the people having any say."
"We aren't shaking anybody down," responds bankruptcy attorney Tom Lawless, the fundraising group's treasurer. "Nothing could be further from the truth. Personally, I resent the implication that I'm trying to lean on somebody. I'm not."
Also on the side of the judges are the titans of Tennessee's business world. They fear contested elections will unleash wild campaigns complete with spending sprees and nasty TV ads that will favor their archenemies — trial lawyers and ambulance chasers out to win big verdicts in product-liability and negligence lawsuits against deep-pocketed corporate defendants.
Justice Wade kicked this hornet's nest abuzz by making a contribution to Bell's opponent in the last elections. Obviously irked, Bell complained to the media, saying it shows judges will stoop to engage in partisan politics if it suits their purposes.
Wade says that when he made the donation, he didn't even know Bell was running in the election, which was for an open Senate seat. "It was not a targeted gift against anyone," the judge insists. "I had no idea that would be a controversial contribution when I made it."
The way judges are selected in this state has been controversial for 40 years, ever since the law first was changed to hold yes/no retention elections for judges on the Supreme Court and the courts of appeal.
The debate pits judicial independence against accountability to voters. Critics argue state judges are arrogant and out of touch. Last summer, legislative hearings highlighted the failure of the judiciary system to discipline judges for ethics violations. Of the hundreds of annual complaints, 90 percent are dismissed.
Social conservatives point to state court decisions in favor of killers in death penalty cases and for greater abortion rights than have been awarded by federal courts. Despite this, only one Tennessee judge ever has been unseated in a yes/no election. That was Supreme Court Justice Penny White in 1996, after she agreed there was no evidence that the rape and murder of 78-year-old Mina Ethel Johnson in a Memphis parking garage was "especially heinous, atrocious and cruel" — one of the state's "aggravating circumstances" necessary for imposition of the death penalty.
Two years ago, under pressure to change the system, the legislature reworked the makeup of the commission that nominates judicial candidates to the governor for appointment. Once appointed, the judges run in yes/no elections every eight years. Under the change, the authority to appoint the commission — which had been dominated by lawyers — was given to the speakers of the House and Senate, both Republicans who presumably can be counted on to name conservatives.
But the system's opponents aren't satisfied. For them, yes/no elections defy the plain meaning of the state constitution, which says appellate judges "shall be elected by the qualified voters of the state." In 1973, the state Supreme Court upheld yes/no elections, but conservatives scoff at that opinion as legal mumbo jumbo. The court found then that retention elections are OK because the constitution doesn't specify exactly what kind of elections have to be held.
"If you read the constitution, it's pretty clear what it means," says Ned Williams, a conservative activist on this issue. "Some people don't care what the constitution says. They want to do what's best for them."
Twenty-two states now force their Supreme Court justices to run in competitive elections. That has led to an explosion in spending on judicial elections — from $83 million in 1990-99 to $206 million in 2000-09, according to a report by the Brennan Center for Justice at New York University's School of Law.
Judicial elections have become costly wars pitting plaintiffs' lawyers and unions against businesses and conservatives. Ohio Supreme Court Justice Paul Pfeifer was quoted as saying he felt "like a hooker down by the bus station" during his campaign.
Special-interest super-spenders are dominating many contests. In 29 elections, the top five spenders gave an average of $473,000. In a notorious West Virginia case, a coal executive spent $3 million to elect a justice who later ruled in favor of his benefactor's company in his appeal of a $50 million jury verdict.
In state high court races in the past decade around the country, more than $93 million was spent on TV commercials — and attack ads were on the rise. A $3 million independent campaign accused a West Virginia justice of freeing child molesters. A Michigan GOP ad claimed three Democratic candidates were freeing killers and rapists "again and again."
"The court system is founded on the principles of impartiality and fairness," Tennessee Chief Justice Cornelia Clark said in a statement to the Scene. "We believe that the current method of selecting and electing judges preserves those values and encourages a qualified, accountable and diverse judiciary. ...
"Merit retention elections protect our state from the multimillion-dollar elections that have become the norm in states such as Alabama and Illinois, where recent campaigns for a single seat on the Supreme Court have topped $8 million."
Gov. Bill Haslam says he favors keeping the system the way it is. But it's not certain the governor can control this issue with social conservatives now dominating the legislature.
For this session anyway, the most likely outcome probably is none at all. The Tennessee Chamber of Commerce already is talking about the need to send the whole argument to a summer study committee — a favorite water-treading tactic. Lawmakers will have to make a decision by 2012, when the current law expires. Who knows — a few Christmases from now, you might be able to buy someone a judge.