David Fowler President

May 5, 2009

Part of the fight over the election of Supreme Court Judges is whether having real elections will inject politics into the Supreme Court. For those who know their history, the irony of this argument is actually quite funny.

About two weeks ago there was an interesting bit of political theatre played out in the Civil Practice Subcommittee of the House Judiciary Committee. Appearing to speak on behalf of contested elections for the Supreme Court and against the current appointment and referendum process were former gubernatorial candidate John Jay Hooker and his political foil, former Governor Winfield Dunn. Together they recounted how, after 100 years, the legislature decided to move away from contested elections for Supreme Court Judges to the current process by which Judges are appointed by the Governor and only stand for a yes-no retention type elections. Here’s why, and it’s not because of some high and mighty revelation that real judicial elections were bad public policy. No, and what’s funny, is that doing what we’d done for 100 years suddenly became bad politics.

In 1969, John Jay Hooker was the shoo-in for Governor. Tennessee, with some exceptions, was a one-party state—Democrat. But Winfield Dunn pulled off the colossal upset, becoming the first Republican to win a statewide election in more years than anyone could count.

But, according to Mr. Hooker, that loss threw the Democratic Party’s leaders in tizzy because they now feared that Republicans might win other statewide elected offices. The only other statewide elected office over which the Democratic majority in the legislature had any control was the election of Supreme Court Judges (the election of U.S. Senators being controlled by federal law). And, to prevent a Republican from running for the Supreme Court, Democrats passed a process by which the Governor could appoint people to the Court and then the appointee would only face a yes-no retention election. That, of course, effectively prevented a Republican (or anyone they didn’t like) from being able to run for Supreme Court. This is not conjecture or political spin; this is the testimony of the two men involved in the history making change that was made!

Asserting that an “election” process born out of politics, not sound public policy, is now good public policy because it somehow avoids politics (which it doesn’t) is like making a silk purse out of a sow’s ear.