By Chris Butler | Tennessee Watchdog
NASHVILLE — Voters decided Thursday to retain Tennessee Supreme Court justices Gary Wade, Connie Clark and Sharon Lee, Democrats in a mostly conservative state, but it appears the failed effort to unseat them had one key impact.
The justices didn’t coast to the same high margins of victory as justices in prior retention elections have done.
“The last time these judges faced retention, they cruised to victory with 75 percent of the vote,” said Tennessee activist George Scoville, who has filed ethics complaints against the three justices.
“This time, they eked it out with only 56 percent, a difference of 19 percentage points. That’s a pretty substantial downgrade in voter approval, and the justices would be as foolish as they are brash to think voters and members of the Legislature won’t be watching the state attorney general selection process like hawks — though they still have their friends in the media.”
Scoville refers to the controversy over the justices’ selection of Democrat Bob Cooper to occupy the attorney general’s office. Cooper refused to join 28 other states in a lawsuit challenging the federal government over Obamacare.
The higher-than-average vote against the three justices, Scoville said, shows the message against retention resonated with a substantial number of Tennessee voters.
Americans For Prosperity Tennessee Chapter Director Andrew Ogles, who said his organization never actively campaigned for or against retention, said Friday the odds of unseating the three justices were always stacked against anti-retention forces.
Scoville told Tennessee Watchdog opposition groups could have done things better.
“On the strategic side, the folks urging voters to replace the justices, predicated on the notions that they were too liberal or soft on crime, did not substantiate their claims very well,” Scoville said.
“The organizations urging replacement did not have a candidate to rally around, so organizing and mobilizing was sort of out of the question. They were reduced to direct mail, TV ads, and some digital and social marketing.”
“On the tactical side, the retention campaign, to its credit, did a very good job of organizing volunteers and mobilizing voters,” Scoville added.
Tennessee Forum leader Susan Kaestner, whose group was among the most outspoken against retention, said Friday that establishment media forces weren’t receptive to her group’s message.
“I told every single reporter I talked to that we had a Democratic judiciary for 144 years, and yet I don’t think a single reporter picked that up,” Kaestner said. “That was a big part of our message, but we don’t have much control over earned media.”
Scoville said establishment media forces had little to say about the ethics complaints he filed against the justices, including one against Wade for allegedly violating state election and ethical cannon laws.
“The ‘mean Republicans in the Legislature are beating up on the fair, impartial judiciary’ narrative was set by gatekeepers so early in this process, and I’m not sure anyone bothered to cover anything else,” Scoville said.
Media criticisms aside, Scoville said there were three key reasons why voters retained the justices.
First, Scoville said, the retention election format protects incumbents.
“The genius of the adoption of the unconstitutional Missouri Plan in the 1970s in the first place is that it shielded politically favored judges from having to face direct challenges in open elections. In other words, voters didn’t have a clear choice on Thursday between the justices and Judges A, B and C,” Scoville said.
Second, he added, Lt. Gov. Ramsey and State Sen. Mike Bell, R-Riceville, were the only two high-profile faces of the replacement effort.
Third, Scoville points criticism at the state’s trial lawyers, particularly the Tennessee Bar Association.
“The power brokers whipped their rank and file into shape, and used self-selecting polls of small minorities of their membership to make public claims about what lawyers broadly thought about the Supremes as justices.”
TBA officials didn’t immediately respond to a request for comment Friday.
Also not immediately responding to requests for comment were Carol Andrews, Victoria McCullough, Brenda Gadd and Keep Tennessee’s Supreme Court Fair, all of whom campaigned for retention.
Tennessee Watchdog was the first to report the justices hired McCullough, an Obama operative, to help run their campaign. Tennessee Watchdog also reported trial lawyers held swanky fundraisers for the justices, and the justices have deep partisan ties to the Democratic Party.
All of this while the justices swore partisanship had no place in this campaign or any place in corrupting an independent judiciary.
Regardless of the outcome, Scoville said Tennessee is still very much a red state.
“Three Democrat justices and their Democrat campaigners bent over backwards to try to convince voters that they weren’t Democrats,” Scoville said. “The results of the Supremes’ retention prospects were never going to be determined along red and blue lines, simply because there were never red candidates to oppose the three blue ones.”
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