Family Action Council of Tennessee

Politics in the Judiciary. “Say it ain’t so!”

In 1994, the General Assembly eliminated contested judicial elections for our state Supreme Court and Appellate Court, opting for retention elections. Now, the only way to become a Supreme Court Justice is to get appointed by the Governor based on the recommendation of an appointed “committee.”

"It appears our governor, legislators, judges, and attorney general all gave us what we said we didn’t want.”

The idea was that appellate court Judges should be non-partisan (we have partisan elections at the local trial court level) and that politics should have no place in the appellate courtroom. That, of course, is a wonderful goal and ideal. So, it was a bit of a surprise to see Supreme Court Justice Cornelia Clark’s picture in Tuesday’s Tennessean as a guest speaker at the Williamson County Democratic Club meeting. Having known Justice Clark for a number of years when she lobbied for the Judiciary, I have no doubt she’d be terribly opposed to going back to contested elections, particularly if the Justices had to run on a Party ticket.

But why we have retention elections for our Supreme Court instead of the contested elections we had for almost 200 years is quite an interesting story of politics and Constitutional sleight of hand. And my guess is that there will be an effort in this year’s legislature to return to contested elections.

The state Constitution says that Supreme Court Justices are to be “elected by the qualified voters” of the state. When the bill to convert contested elections to retention elections was being considered, an important consideration for legislators was an opinion by the Attorney General’s office that this phrase – “elected by the qualified voters” – did not mean contested elections and that retention elections could be considered “elections.” Of course, this makes you wonder if the attorney general would say that retention elections are okay for legislators?!

What is interesting about this interpretation is that our Constitution also says that when legislative vacancies occur for an unexpired term with more than 12 months remaining, a new legislator is to be “elected by the qualified voters.”

What makes this interesting is that the normal rule of legal interpretation is that the same words in a legal document ought to be given the same meaning in every place those words appear in that same document. It makes good common sense – if you meant one thing in one place, then you probably meant the same thing in the other place.

So if “elected by the qualified voters” means a retention election is permissible for appellate judges, then you should be able to have them in an election to fill a vacancy in a legislator’s seat. But how do you have a retention election for a legislator where there is a vacancy? There is no one to “retain!” No one has ever really answered that question and really can’t unless we want to pretend that those who adopted our Constitution adopted back in 1870 intended for there to be retention elections in one place – which, by the way, were unheard of back then – and something different in another place.

This kind of problem is sure to appear when the Constitution is viewed as a “living” document subject to “judicial updating” based on the whims of popular culture. As the old saying goes, “What a tangled web we weave when first we practice to deceive.” When you start making it up as you go, it’s easy to forget where you’ve been and to wind up in some pretty strange places. And allowing retention elections when there is a vacancy is pretty silly.

What makes this issue even more interesting is that not many of the few constitutional amendments that actually make it to the ballot are ever rejected by the voters. But, when the last major changes were proposed to our constitution back in the 1970’s retention elections for our appellate judges were specifically rejected at the ballot box. It appears our governor, legislators, judges, and attorney general all gave us what we said we didn’t want.

And worse yet the current system allows for way too much secrecy in the process of naming and evaluating judges – work done by a committee. In the aftermath of the Tennessee Waltz and after even more recent talk about open meeting laws, there seems to be a climate of glasnost in Tennessee government. Even Governor Bredesen has spoken out about the need for more glasnost (well, in so many words) saying that the people’s business needs to be done in view of the public and judges are no exception.

We agree and applaud the Governor for his position. But adhering to the plain language of the Constitution is even better. Perhaps it is time for reason to prevail and for “elect” to once again mean, “elect.” And if we don’t like the plain language, our Constitution provides a right way to change it. And a team effort in which only politicians, lawyers, and judges are invited to the game in order to avoid the people is not that way.

There will most likely be at least some effort this year to return to contested elections for the Supreme Court which is, no doubt, what our founders intended and what the practice was in Tennessee for almost 200 years. We’ll keep an eye on that debate for you.

Politics of Life and Off to the Races We Go…

January 22, is the 35th anniversary of the date the U.S. Supreme Court issued its decision in the case of Roe v. Wade which opened the floodgates to abortion and has resulted in the death of more than 48 million pre-born children in America. We discussed the politics of abortion in Tennessee in last week’s Family Action News and from some of the feedback we have received, it created quite a stir on the Hill.

So, our “prediction” that it would be a major political issue was right on target! Of course, you’d have to be out of touch with the concerns of social conservatives to not know this would be a major issue which may explain why few newspapers leading up to the start of session even mentioned the issue instead focusing on pending squabbles on budgets, lottery scholarships, and immigration.

But the abortion fireworks got lit in a hurry this year when the Senate Judiciary Committee moved SJR 127 (the Senate Joint Resolution to place on the ballot a constitutional amendment declaring there is no right to an abortion in our state constitution) out of committee where it will most likely be on the Senate floor next week. This resolution would reverse the decision of our State Supreme Court in 2000 in which four Justices decided we should have a right to abortion in our State Constitution, making us one of only 16 states with such a distinction. For some insight into all the furor this week and what lies ahead, just read on.

All the talk about SJR 127 and the early movement on the Resolution did not sit well with a number of legislators. For example, Speaker Pro Tem Lois Deberry (D-Memphis) was quoted in the Tennessean as saying the Republicans were “making it [abortion] a campaign issue.” Would anyone really expect otherwise? And it is not as if there weren’t Democrats who used opposition to the lottery as a political campaign issue against Republicans. Both parties do it and, after all, elections are one of the best forms of influencing legislators the public has in our form of government. Using issues in campaigns is exactly how voters get to choose who will represent them.

But more interesting was Representative DeBerry’s apparent comment to the reporter, who summarized her statement as follows: “opposition [to SJR 127 this year] might be based more on the measure being used as a political tactic more so than on its merits.” So in other words, let’s just put an end to substance prevailing over politics before we even get started.

But, we need to realize that politics is substance for some. For example, when one’s party’s position is pro-abortion or vice versa, as is the case with Democrats and Republicans, respectively, it is hard to see how politics is different from the merits when one’s position “on the merits” is reflected in their political position. And if legislators think they can fool the public into believing that on issues like abortion, politics and position are different, then they don’t have a very high regard for our ability to think for ourselves.

But if, as Representative Lois Deberry suggests, politics and the merits are separable, then what she said is remarkably sad. It is sad that this champion in the war against birth defects (having been so honored about a year or so ago) would want a debate over the clash between the dignity of every human life and individual autonomy to be kept from the House floor for purely political reasons rather than the merits.

If one is for allowing women to kill their pre-born children, then stand up and say so proudly. As much as I disagreed with him, former State Senator and now Congressman Steve Cohen was a stand up defender of abortion – he was for abortion with no exceptions.

But, if one is pro-abortion rights, don’t hide behind tired old clichés like “it’s just partisan politics” or “it’s just a wedge issue” as a reason to avoid a floor vote. Everything the legislators discuss this year - the lottery, immigration, voter identification, taxes - potentially everything – will be used politically by one Party or the other to drive a “wedge” between a sitting legislator and his constituency. So everything is really a “wedge” issue, and if “wedge issues” should be kept from a floor debate because it’s just about politics, then nothing should come to the floor this year and session should be over very soon.

Speaking of a short session, this was the very first time in anyone’s memory that something of substance and significance was actually discussed and voted on during the first day of Session. It appears that apart from the early political fireworks, Lt. Governor and Senate Speaker Ron Ramsey (R-Blountville) is trying to light a fire under the Senate to come in, get their work done, and go home – sort of like Julius Caesar’s “veni, vedi, veci” (translated: I came, I saw, I conquered)

For the good of all involved, the shorter the session the better. On your mark…ready…set…go!

Showing your support for a Culture of Life

Sunday, January 20th, is the date that the pro-life community will mark the anniversary of the Roe v. Wade decision. And there are a number of opportunities for those who support a culture of life to gather together to show their concern over the plight of innocent pre-born children, to pray for change, and to show their support for that change. You can find out here what may be going on in your area. And, while you are at it, consider inviting your state Senator and state Representative to go with you. You may even want to discuss with them how they plan to vote on SJR 127.