By Chris Butler | Tennessee Watchdog
NASHVILLE — Voters will decide Thursday to keep or boot three Tennessee Supreme Court justices, but the drama will be far from over.
If justices Gary Wade, Connie Clark and Sharon Lee, all Democrats appointed by a Democratic governor, lose retention tonight one could argue Democrats no longer benefit from a system they jury-rigged in their favor more than 40 years ago.
Under the current system, Tennessee’s governor appoints justices for eight-year terms. Once those terms are up the justices face voters in a retention election as is happening today.
But in setting up retention elections in the early 1970s, Democrats blatantly violated the state constitution.
According to John Jay Hooker’s interpretation, the state constitution clearly specifies voters always elect the justices — and says nothing about the governor appointing them.
“This is an issue that the press has simply not been interested in. They haven’t shown the intellectual curiosity,” said Hooker, who, at 84, is an independent candidate for governor this year, even though he knows he won’t win.
Hooker twice served as the state Democratic Party’s gubernatorial candidate in prior years.
“The issue isn’t sexy enough, and it doesn’t bleed enough. That, and the establishment is so much against what I’m saying, and the media’s news sources are the establishment folks.”
But, according to Hooker, no one seemed to care about these judicial retention elections until now.
“This year’s election in general is getting a lot of attention this year because it’s the first time I’ve seen it so competitive.”
Republicans find fault with Wade, Clark and Lee for appointing current state Attorney General Bob Cooper, who chose against joining 28 other states to fight Obamacare in court on behalf of Tennesseans. Pro-retention forces, meanwhile, say the justices are victims of a false smear campaign orchestrated by Lt. Gov. Ron Ramsey, the Koch brothers and big business interests.
If just one justice fails to win retention Gov. Bill Haslam will name one or more replacements, presumably Republicans, thus giving conservative points of view a majority on the court.
Democratic Party fractionalism
The way Hooker tells it, in the late 1960s and early 1970s the once powerful state Democratic Party was split into two deeply divided factions, which kept Hooker from becoming governor and Albert Gore Sr. from retaining his U.S. Senate seat.
Republican Winfield Dunn took the governor’s office instead.
“After I lost in 1970, the Democrats were still in control of the Legislature. They were afraid that, due to this Republican landslide, that judges would be impeached, so they passed what is known as the Retention Election Statute, which is precisely what we are going through right this minute,” Hooker said.
Hooker’s recounting how that statute came into existence is similar to what Cooper, also a Democrat, said at a 2009 Tennessee Supreme Court Historical Society dinner.
As Tennessee Watchdog previously reported, Cooper talked about how state Democrats changed the rules of the judiciary to their benefit in the early 1970s.
“It’s been on the books ever since, and it’s been a blatant disgrace,” Hooker said. “That’s why I’ve been fighting legally it for all these years.”
Hooker’s legal efforts thus far haven’t proven successful enough.
Hooker has his sights set on Nov. 4, when voters will decide the fate of what is known as Amendment 2, which he doesn’t like.
If voters approve it, the state’s governor, according to Ballotpedia.org, would appoint judges to the state Supreme Court and Court of Appeals, with confirmation from the General Assembly.
After serving an eight year-term, the judges, as they do now, could only seek another term through a retention election by voters, similar to what is taking place today.
The Tennessee Bar Association supports Amendment 2. According to the TBA website, Amendment 2 will result in the best-qualified candidates becoming judges.
“Failure to pass Amendment 2 could also lead to contested, partisan elections for appellate judges, which would bring the corrupting factor of money and politics into our appellate courts,” according to the TBA’s website.
TBA spokeswoman Stacey Shrader Joslin told Tennessee Watchdog she has nothing else to add to that statement in Amendment 2’s defense. Joslin, however, did take issue with a remark Hooker made to Tennessee Watchdog last week, in which he seemed to suggest the TBA once retaliated against him.
“The TBA does not impose discipline on lawyers or judges in the state,” Joslin said.
“It is the Board of Professional Responsibility that investigates complaints and recommends discipline, which is then approved or rejected by the Supreme Court. Mr. Hooker’s comment that the TBA ‘suspended my law license at one time for 30 days’ is factually inaccurate.”
Women and minorities
Hooker has an important question for Haslam if all three justices lose retention.
“Will the governor appoint judges under the Retention Election Statute because it’s still on the books, even though they lost, or will he wait to see what the people say about it in November so far as the constitutional amendment is concerned?”
Haslam spokesman Dave Smith wouldn’t address the matter directly when reached.
“The governor will take the necessary steps for the state to have a fully functioning court of last resort,” Smith said in an email to Tennessee Watchdog.
Then there’s the matter of the Judicial Performance Evaluation Commission, which no longer exists, but, according to Tennessee Courts.gov, used surveys and interviews to review the performance of appellate judges and recommended them for retention or replacement.
JPEC recommended Wade, Lee and Clark for retention.
Hooker said not enough women and minorities served on JPEC, as state law requires. Seven men and two women served on JPEC.
“In the final analysis, it’s the state Supreme Court who is responsible for this circumstance,” Hooker said. “They had the power to tell the Judicial Performance Evaluation Commission that they were unlawfully seated and make them promptly seated so they can get a proper recommendation.”
Administrative Office of the Courts spokeswoman Michele Wojciechowski didn’t return messages the past two weeks seeking comment on the matter.
Nashville resident Tony Gottlieb, a self-described conservative allied with Hooker, told Tennessee Watchdog conservatives ought to care about the lack of female and minority representation on JPEC.
“They are not operating under the law, but rather tortured logic applied to sidestep important constitutional issues,” Gottlieb said. “Here is absolutely clear evidence these guys on the courts are willing to violate the statute, as it is written to maintain their positions on the court.”
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