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Lawmaker Questions Appropriateness of Justices Lobbying Legislators

Tennessee Chief Justice Cornelia A. Clark has publicly stated she opposes making Tennessee judges stand for election — and that she’s sharing her views on the matter with legislators. Sen. Mike Bell suggests a judge engaging in closed-door policy advocacy is akin to a politician offering ex parte input on a case under a court’s consideration.

Sen. Mike Bell, R-Riceville, said Monday he believes it would be improper for members of the Tennessee Supreme Court to lobby the Legislature against efforts to move the state toward the election of Supreme Court judges.

Nevertheless, Bell has a meeting scheduled with Chief Justice Cornelia Clark on the issue later this week.

Clark told a group of journalists last week that efforts in the legislature to pull back from the state’s retention election system are misguided, and she said she has been involved in discussions with lawmakers voicing her objection to the legislation.

Bell has three bills dealing with judicial elections. He wants to see the state revert to where it was before the Tennessee Plan, which currently seats judges, was implemented.

Bell winces when he brings up potential impropriety. But he said in an interview Monday that he felt the need to say what he believed.

“I think it at least borders on improper,” he said. “If they’re up here lobbying to protect the system, I think it’s improper for them to be doing so. This is a legislative matter, not a judicial matter. This is something I believe should be decided by the Legislature. We’re the ones that created it in 1971. If we choose to continue it, change it or do away with it, it should be up to us.

“Just as it would be improper for me to go and tell them how to rule on a specific case, I think it’s improper for them to be involved in this. That’s probably going to to get me some enemies, but that’s what I believe.”

Clark, speaking to a Tennessee Press Association meeting last week, said, “We, and I personally, have had a number of conversations with legislators, and we’ll continue to do that.

“We are engaging in a good dialogue, and there are some good-faith differences of opinion about what the right answer is.”

Bell has three bills, one of which he was still putting the finishing touches on Monday, regarding judicial elections. That last measure — the one he prefers — is one that would essentially wipe the slate clean of the Tennessee Plan and the let the debate begin anew. But he says his motivation is the clear and simple language in the state Constitution that calls for elections of judges.

In Tennessee, a special commission submits names to the governor, who makes the appointments to the bench. After a judge is on the bench, each judge is subject to what is known as a retention election, where citizens vote up or down on whether to retain the judge.

Bell, and many others, believe the retention election process is inconsistent with clear language in the Constitution.

“The judges of the Supreme Court shall be elected by the qualified voters of the State,” the Tennessee Constitution reads.

Bell has another bill that, short of eliminating the retentions plan, calls for the nonpartisan election of Supreme Court judges from five districts across the state that would be drawn by the Legislature. It would also prohibit the candidate from knowing who contributed to a campaign and the amounts of the contributions.

A third bill sponsored by Bell would require that a judge receive 75 percent of the votes in a retention election, as opposed to the current majority requirement. Since the plan was put in place, only one Supreme Court judge, Penny White, has been removed in a retention election.

Bell, who says he is fundamentally a constitutionalist, is in his first year as a member of the Senate, after serving two terms in the House.

“I got interested in this issue when I was first elected to the House, when I found out what the Constitution actually says,” Bell said. “Article 6, Section 3 says judges shall be elected by qualified voters of the state. I think that wording is very simple and understood by anybody.”

He said if that phrase were put before the people of Tennessee, he believes 95 percent of them would interpret it to mean elections like the state has for other offices.

Bell calls the current system “kind of a charade.”

“It’s almost set up to where we’re intentionally keeping voters from knowing anything about the people running,” he said. “They may all be great people. They may deserve to be retained or re-elected, but under the process, we can’t know anything about them.”

The issue centers on concerns that electing judges at the appellate level can unduly politicize the judicial system. A fear exists that judge’s campaigns would begin to mirror typical political campaigns, where conventional political functions like television commercials could influence elections in ways that are not in the interest of justice.

Bell emphasizes that he is not arguing whether such campaigning would occur if open elections were held. He says the state is simply in no position to ignore what the Constitution clearly intends.

But even Bell concedes there could be political ramifications in part of the legislation he has introduced. His bill for establishing five distinct districts could be subject to gerrymandering, he acknowledged. And he said while one of his bills calls for the candidate being unable to know the origins or amounts of campaign contributions, the people should have access to that information. Bell said he has tried to go by models in the trial courts to craft his legislation.

As for requiring approval by 75 percent of voters in order to be retained on the bench, Bell said it should be higher than a simple majority.

“They need a higher standard, a higher bar to cross to be re-elected,” Bell said. “Many states that have similar plans require 66 percent of the vote. I figured I would start at 75.”

6 replies on “Lawmaker Questions Appropriateness of Justices Lobbying Legislators”

If you look at the roots of the Tennessee plan you will find that it’s a partisan hack at what worked as a decent process.

One party can’t stand that another party might have a go at things in the same manner that the first party had for decades!

Why is that? Do they fear the other party will be unfair? Do they protest a bit too much?

This give and take is not what we have a Constitution for. This is not Rule of Law!

“This process was adopted as a compromise between Democrats in the Tennessee General Assembly and Republicans from East Tennessee. Many Democrats favored the process as a way of limiting the power of then newly-elected Republican governor Winfield Dunn. Republicans from East Tennessee who favored the creation of a medical school at East Tennessee State University, which Dunn opposed, agreed to support the Modified Missouri Plan in exchange for support by the Democrats for the medical school, which was subsequently created as the James Quillen School of Medicine.”

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