More than half the members of Gov. Bill Haslam’s hand-picked special Supreme Court have recused themselves from hearing a case to determine the constitutionality of how Tennessee selects appellate and high-court judges.
Special Supreme Court Judges William Muecke Barker, George H. Brown and Robert L. Echols announced Friday they had disqualified themselves from the case because of a perceived conflict of interest. The three have ties to a group that lobbies against judicial elections, which is the issue at the heart of the case.
“Although the undersigned Special Judges have not formed an opinion about the constitutionality of the contested language of the Tennessee constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” reads the Special Supreme Court order.
The three judges have ties to the group Tennesseans for Fair and Impartial Courts, an organization that has lobbied against moves to elect appellate judges.
Former gubernatorial candidate John Jay Hooker argues that judges should be popularly elected by voters, like lawmakers and lower-level judges are. He is suing Haslam and other state government officials for appointing a judge to the Criminal Court of Appeals.
“Why on earth they monkeyed around all this time is beyond me,” said Hooker.
“The problem here is that the fix was in. Hell would freeze over before those three judges would hold the retention election statute unconstitutional,” he continued.
Judges are now assigned to the bench through the Tennessee Plan, a method which requires high-ranking judges be appointed by the governor, then elected by the people to renew their eight-year terms through uncontested “yes-no” retention elections.
Many believe the Tennessee Constitution requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.
The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”
The recusals leave Special Justice Andrée S. Blumstein and Special Justice W. Morris Kizer to man the court.
Through a spokesman, Haslam’s office issued the following statement:
The governor appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve. Their actions are out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court.
Judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day.