Justices’ Retention Election a Chance to End Democrats’ ‘Dominance’ Over Courts: Bell

In front about 30 to 40 Chattanooga-area Republicans — including a couple fellow state lawmakers and several other local GOP politicians — State Sen. Mike Bell on Monday laid out his case against retaining the three Tennessee Supreme Court justices on the statewide ballot Thursday.

Initially, the Pachyderm Club of Hamilton County had been scheduled to hear solely from Tennessee Chief Justice Gary Wade about why he and the other sitting justices, Sharon Lee and Cornelia Clark, deserve new eight-year terms on the state’s high court. But when the GOP group’s program was altered last week to include time for Bell to speak against the retention effort, Wade bailed out.

Carol Brown Andrews, a campaign spokeswoman for the three justices, said that with the late addition of Bell to the forum, the program had “drastically changed into a debate situation.” Andrews added, “That’s never happened in any other situation, and we just didn’t feel like that was an appropriate thing to do.”

Long a critic of various aspects of how the state’s judiciary is run and high-ranking judges are selected, Bell, who is currently chairman of the Senate Government Operations Committee and a member of the Judiciary Committee, tried to make the most of Wade’s absence from the stage by blasting away at the three Democratic justices and their “coordinated campaign” to win retention.

Bell, who lives in McMinn County, called on the local GOP movers-and-shakers in the audience to hammer the message home among their political networks that Thursday’s retention constitutes an unprecedented opportunity for Tennessee Republicans to wrest control of the courts from Democrats.

“There’s a campaign going on in the state of Tennessee about who is going to control our judiciary,” Bell said to the luncheon gathering. “Will the partisan Democrats continue their dominance over our judicial system, or will we as Republicans use the ballot box our constitution guarantees us to vote out Democrats and allow Republicans to take their place?”

Bell, who also chairs a new Senate Ad Hoc Committee on Judicial Accountability, argued that far from being free of political influence, the court system — in particular, the selection process for Supreme Court justices — has always been rife with partisanship.

Although judicial retention elections are usually mundane affairs, the question this year as to whether to retain or replace Justices Clark, Lee and Wade — all three appointed by Democratic Gov. Phil Bredesen — has become a hot spot of political activity, receiving even national attention for the amount of cash being thrown around and the intensity of the campaigning on both sides.

Republicans like Bell, including Lt. Gov. Ron Ramsey and House Majority Leader Gerald McCormick, have been out-front in their criticism of the justices, saying that the state ought to get a new court — and, for that matter, a new attorney general — that better reflects the shift toward GOP dominance that’s occurred in Tennessee over the past few elections.

Bell gave a brief overview of the history of the Tennessee judiciary before getting to his main thrust, which was that politics has always been part of picking judges.

While the earliest version of the Tennessee Constitution had initially designated the Legislature as the body to select the state’s top judges, Bell noted that with the embrace of populism during the time of Andrew Jackson, judicial selection was changed to institute direct elections of appellate judges, including on the Supreme Court.

With the adoption of the Tennessee Plan in 1971, though, the Legislature embraced so-called “merit selection,” whereby judges are politically appointed and then stand later in retention elections unopposed by a candidate running against them.

The idea that judges are not partisan, and that politics never played a part in the selection process for the state’s top court is a myth, said Bell. He accused Justices Wade, Clark and Lee of having based their “entire campaign” on “lies” with respect to their claim that the judiciary and judicial selection has for the most part been sheltered historically from the debasing influences of partisanship.

Bell added that Republicans shouldn’t “apologize or make excuses” for wanting a conservative attorney general, saying Democrats are well aware that they themselves have manipulated the judicial selection process in the past to ensure they keep one of their own in that slot. “If partisanship is not inherent in the current process, I’d like the Supreme Court judges to tell me why there has never been a Republican AG in the history of our state,” Bell said.

He quoted from a speech delivered by Robert Cooper, the state’s current attorney general, before a Tennessee Supreme Court Historical Society annual dinner five years ago in which he, Cooper, spoke frankly about the motives behind the Democratic state lawmakers’ decision in the 1970s to in fact revert back for a time to judicial elections when they became fearful a Republican governor would appoint GOP-connected justices to the high court — justices who would in turn appoint a Republican attorney general.

“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,” Attorney General Cooper told the gathering. “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.”

The attorney general’s full speech at the event was later published in the Supreme Court Historical Society’s newsletter.

Bell described the Democrat-controlled Tennessee Legislature’s maneuverings over the Supreme Court justice selection process in the last quarter of the 20th Century in starkly partisan terms.

“When an appointed judiciary served the Democrats, they went with it,” he said. “When an elected judiciary served the Democrats, they went with it.”

And Bell accused the three justices themselves of making politically motivated campaign contributions in the past, mostly to Democratic politicians, but once to Bell’s own Republican opponent in a primary.

State campaign finance records indicate Justices Wade and Lee each gave $500 to former state Sen. Lou Patten on the same day in December 2009. Bell defeated Patten handily in August 2010.

“There is no record that I know of judges getting involved in a Republican primary, except in my race. And I can’t help but think it has been because of my outspoken opposition to the current method of how we choose our judges — I feel it does not line up with what the state constitution says,” said Bell, who is up for re-election this year but does not have an opponent.

Bell also criticized the three justices for hiring Democratic Party operatives and other elements of “the Democratic political machine, in both Nashville and D.C., to run their campaign.” And he took aim at the Wade, Lee and Clark campaign’s heavy reliance on contributions from the state’s lawyers.

“The other side’s saying that we’re corrupting the courts with money,” Bell said. “And they’re not corrupting the process by funding their races with money that is coming predominantly from lawyers and judges? The same lawyers who practice before them, and the same judges whose decisions will either be affirmed or overturned by them.”

Tennessee Senate Speaker Pro Tem Bo Watson, a Hamilton County Republican who’s also been critical of the current make-up of the state’s top court, was also at the Chattanooga meeting, along with Sen. Todd Gardenhire, another area Republican and Wade detractor.

Watson told TNReport following the presentation that he he thinks the highly politicized nature of this year’s judicial elections shows it’s a “fallacy” to suggest that politics play no part in retention elections.

“The whole retention election process for me is a challenge to the notion that retention elections are not political,” Watson said. “They haven’t been political because no one’s ever pointed out or taken the time or used the resources to point out what the record of the various justices are — good, bad or indifferent.”