Tennessee Supreme Court Chief Justice Cornelia Clark on Friday criticized efforts to have members of the court chosen through popular elections, but she acknowledged that she has participated in the political process by making political campaign contributions.
Clark addressed a luncheon meeting of the Tennessee Press Association in downtown Nashville and expressed concerns about legislative efforts to elect judges.
“There’s not enough money you could pay me, or pay on my behalf, to have me change my mind about an opinion in a case. But I can understand why, if somebody who had given enough money to my campaign, you might worry about that. You might question my sincerity.”
The issue of elections of appellate judges has become a contentious issue, with a push in the Tennessee General Assembly to move the state away from the merit selection process currently in place.
The debate is between those who see an inherent danger in politicizing judicial seats and those who believe in a constitutional requirement of allowing elections.
The state currently operates under what is known as the Tennessee Plan, which allows the governor to appoint judges from a select list of candidates from a nominating commission. The public can then keep or remove judges through retention elections, which rely on a yes/no vote. The system has been found to pass constitutional muster.
The argument for the current system is that it insulates the judiciary from partisan politics. The argument against it is that the current system is elitist and ignores the right of the people to choose who sits on the bench.
Along the way, issues have risen as to whether judges themselves should be contributing to political campaigns. Speaking to TNReport after her speech Friday, Chief Justice Clark said she could not recall contributing to anyone in the last year, but she said she has contributed to a number of legislative candidates in the past.
She listed Sen. Doug Overbey, R-Maryville, and Sen. Joe Haynes, D-Nashville, as those she has contributed to, as well as U.S. Rep. Marsha Blackburn, a former state senator, and former U.S. Rep. Bart Gordon.
“I have contributed to political campaigns because our current ethics rules allow that,” Clark said. “Those rules have been changed off and on over the years, and I understand some concern has risen about that recently.
“So in the coming year as we are going to consider complete revisions to our rules of ethics, that’s going to be one of the topics we talk about significantly. Judges should not give up their rights. But if there is any concern that our giving to a campaign may suggest a certain outcome in a case then we need to look at that very closely.”
Clark said there has been dialogue between the court and legislature about the election of judges.
“We, and I personally, have had a number of conversations with legislators, and we’ll continue to do that,” Clark said. “We are engaging in a good dialogue, and there are some good-faith differences of opinion about what the right answer is.
“We also understand there are a number of business leaders and others who want to participate in that dialogue and to sort of give their perspective, so we expect that dialogue to continue.”
Clark said she had met just this week with 10 to 12 legislators on the issue and expects those discussions to continue.
Sen. Mike Bell, R-Riceville, has sponsored a bill requiring that Supreme Court justices be elected. His bill would have one Supreme Court justice elected from each of five districts in the state, to be drawn by the General Assembly. It would prohibit judicial candidates from personally seeking or accepting campaign contributions and would prohibit the campaign treasurer from divulging to the candidate the names of donors or the individual amounts of their donations.
Clark used a sports analogy to make her point about politicizing judicial seats. First, she asked the audience if they could identify the names Phil Luckett or Jim Joyce. She explained that Luckett was the instant replay official on the famed Music City Miracle in 1999 when the Tennessee Titans defeated the Buffalo Bills on a last-play lateral pass. She informed the group that Joyce was the baseball umpire who made the call that cost Detroit pitcher Armando Galarraga a perfect game against the Cleveland Indians last season. Joyce later admitted he blew the call.
“Here’s what I want you to remember,” Clark said told her audience. “What would it be like if we elected the officials in our sporting events?
“What if the Titans could run a slate of referees and the Colts could run a slate of referees?”
Then, she said, somebody got to vote, and the outcome was determined by whoever put up the most money and ran the most “great-looking, Super Bowl-like commercials” to elect the referees.
“Let’s say the Titans won,” Clark said. “Their referees would show up on the field. Titans fans might be happy, but I’m not sure the Colts fans would be very happy. I’m sure the referees could say, ‘I take my oath. I’m hired just to administer the rules, and it doesn’t matter if this team spent $5 million or that team spent $4 million. I’m going to call it the right way.’
“I’m not sure the perception would be great.”