Political Science

Gloom, Despair, and Agony on Me

By Sean Evans, Chair and Professor of Political Science

Jul 24, 2014 -

                 In the show Hee Haw, one of the weekly skits had two people talking about something that was not as they thought it was in a song called “Gloom, Despair, and Agony on Me.”  After examining the arguments for and against retaining the three Justices of the Tennessee Supreme Court, I feel like singing “Gloom, Despair, and Agony on Me” because the arguments in favor of retention come from a commission with a credibility problem and the arguments for rejecting the Justices are just plain weak.

                Yesterday, I examined the underlying philosophies behind the arguments for judicial independence and judicial accountability. Today, I am examining the arguments for why the Justices should be retained or rejected.  Despite the polarized opinions over judicial independence and judicial accountability, we want both independence and accountability. We want an independent court willing to protect our constitutional rights, but not one so independent that it usurps the political branches role in making public policy.  The question then becomes how do we hold the court accountable? One side believes the standards should be professionalism while the other side believes political considerations are relevant.

                Those favoring judicial independence believe that the criteria should be the professionalism of the judges. Based on the philosophy of progressivism, the proponents believe the standards for determining whether a judge should be retained are the standards listed in TN Supreme Court Rule 27: integrity, knowledge and understanding of the law, ability to communicate, preparation and attentiveness, service to the profession and public, and effectiveness in working with other judges and court personnel. By law, there exists a Judicial Performance Evaluation Commission (JPEC) to evaluate each judge on this criteria which is then made public in a report.

                The primary problem with this approach is the JPEC has a credibility problem. First, JPEC has never recommended a single judge not be retained. This record may be because the Tennessee Plan does such a good job of nominating excellent candidates. However, it is hard to believe that over the past 20 years that no judge has done something so he/she will not be retained. In fact, the norm of the commission is to make a preliminary and then a final recommendation.  If the commission makes a preliminary decision not to retain a judge, the judge usually retires. If this happened in every instance, that would be OK. However, there are instances where a judge gets a preliminary no retention decision but then gets a final decision in favor of retention. 

                The change from recommend for rejection to favor retention raises certain questions. First, did the judge in question or some other actor plead, beg, or pressure JPEC to change the recommendation? If so, the commission process is subject to a certain amount of corruption. Second, did the commission not do a thorough evaluation in the first place to come to a wrong decision? If they did not do a thorough job on one person, then how well can we trust the recommendations of JPEC on other judges? Third, does JPEC provide a preliminary recommendation to convince judges to retire and then change it to favorable when the judges does not retire?  If so, this calls into question the integrity of the commission.  The best case scenario explanation from what I have read is that JPEC identifies a real problem but accepts a pledge to do better in the future as sufficient reason to reverse their decision. Accepting pledges without a change in behavior may mean the judge never really addresses the problem. Perhaps, the initial review should come halfway through their eight year terms so they have time to change. 

                Second, the JPEC recommendation does not provide much information. Most of it basically recites biographical information that one can get elsewhere.  This lack of information relates to the third problem in that it may not thoroughly investigate concerns. For Chief Justice Wade, the commission expressed concerns over “published statements attributed to the Chief Justice, if accurate, amounted to active endorsement and lobbying of this Commission” in violation of the law.  The internal investigation cleared Wade because the comment that the judges in question deserve new terms was not an endorsement because he focused on retention and not whether the judges should face a competitive election. However, the question is whether JPEC members heard the comment and felt influenced to reverse their position.  For other judges, the judge had a bad interview with JPEC but then the judge would say the right things in the second interview and that satisfied JPEC. Judges should be self-aware enough of their problems, usually slow turn-around in writing opinions, to know what the concerns of JPEC should be so that they are ready for the difficult questions and should try to remedy their problems long before the JPEC meeting.

With that background, let’s look at JPEC’s recommendations.  Using a scale of 1 being “unacceptable,” 4 being “above average,’ and 5 being “excellent,” JPEC recommended all three justices for retention.  This rating comes from ratings provided by other appellate judges, trial judges, court personnel, and attorney. Justice Cornelia Clark received a 4.43 score with JPEC voting 8-1 to recommend her retention.  The one concern that JPEC had was that she needs to improve how she relates with other court personnel because she had the lowest rating from court personnel among all appellate judges. Justice Sharon Lee received a 4.52 rating and unanimous report for retention. 

JPEC gave incoming Chief Justice Gary Wade a 4.71 rating and a unanimous recommendation for retention. However, JPEC spent more time expressing concern with his alleged intervention to reverse JPEC initial negative recommendations of three appellate judges in 2012. Of the three judges, Jerry Smith pled guilty to driving under the influence which is problematic for a judge who is supposed to use sober judgment. According to Judgepedia, “Officers stopped Smith, less than eight hours before he was scheduled to take the bench, after they spotted luggage falling out of the open hatchback of his vehicle. Smith took a leave of absence from the court following his arrest.” I favor forgiveness but the fact that the judge was drinking that close to taking the bench and admitted a problem with drinking and sought treatment raises strong concerns because he potentially served in cases where he was not performing at the level expected of an appellate judge. To voice support for that judge under those circumstances and for two other judges who JPEC had concerns with is not judicious.

                In addition to strong support from JPEC, the justices also received strong support from the Tennessee Bar Association (TBA), the Fraternal Order of Police, and selected prosecutors from around the state.  The TBA polled its members over a two week period and found that 9 out of 10 attorney support retention of the three justices, with the highest opposition, 7.2%, directed at Justice Clark. The outgoing and incoming presidents of the TBA thought that attorneys are in a unique position to assess the judges and think that the TBA’s evaluation provides better information than voters than partisan labels.

However, these endorsement have some problems. First, the ABA is known to be more liberal than the nation at large and the TBA did not release data on numbers of participants and how well they represent the TBA. Second, the Tennessee Forum points out that 11 of the 12 District Attorneys who endorsed the justices are Democrats and 2/3 of the DAs in the state did not take a stand on retaining the justices which calls into question how broad support for the justices are among prosecutors.

                On the other side, opponents of the justices believe that policy should play a role in determining whether the judges should be retained.  And in the JPEC interviews, all three justices reported their commitment to judicial restraint and deference to the political branches. The opponents of the justices, though, wish to wade through their record more to see if their rulings support their statements.

So what are the arguments against retaining the justices?  Based on examining ads and flyers from Tennessee Forum, Tennesseans for Judicial Accountability, and other groups opposed to retaining the justices, here are the reasons to oppose the justices. First, the justices are partisan Democrats. According to Tennesseans for Judicial Accountability, the justices have hired Democratic operatives to run their campaign, have hired a group that works for progressive causes to design their website, and are supported by Justice at Stake, a group funded by the liberal George Soros. Recently, they gave money to the TN Democratic Party for voter contact information. This argument is basically guilt by association and does not address the concern over judicial decision making. It is possible that a Democratic judge can apply the law in a non-partisan manner just like a Republican judge can apply the law in a non-partisan manner.  If there is evidence that they are partisan in their judicial decision making, then present that evidence.

Second, the Tennessee Forum argues that the Tennessee Supreme Court (TNSC) is the most liberal place in Tennessee. One reason for this is that the Court is liberal on crime.  The ad cites Leonard Edward Smith v TN to support this case. In this case, the TNSC unanimously decided to affirm the conviction for first degree murder, but vacated the death sentence due to ineffective counsel during the death penalty phase of the trial. The use of this case raised two questions. First, did Smith have ineffective counsel?  The Court found that the judge in one of his trials was also a prosecutor in a previous case against Smith and may have biased feelings toward Smith based on prior experience that affected his overseeing the punishment phase of the trial. Therefore, the defense attorney should have been more aggressive in asking Judge Brown to recuse himself. If I am a defendant, I would probably not want one of my former prosecutors to sit in judgment because he may be biased because of past interactions. However, the Court found that Judge Brown did not err in the criminal trial portion which raises questions whether he did in the penalty phase.

Second, does one case make the Justices anti-death penalty or soft on crime?  The fact that the Justices have upheld 90% of all death penalty cases seems to argue against the case. From my perspective, upholding 90% of death penalty cases seems to be a very high number which suggests the justices are not soft on crime, or at least soft on the death penalty.

Third, the Tennessee Forum argues that the Justices “advanced Obamacare” in Tennessee. This is patently false. The TNSC has not heard a case concerning Obamacare.  The argument that is usually made is that the TNSC appointed a Democrat as Attorney General who refused to join the lawsuit against Obamacare. While it is true that the justices appointed Robert Cooper as Attorney General, the justices have no say on how Cooper does his job once appointed.  Cooper exercises his power independently of the justices.  To blame the justices for Cooper’s decision to not join the lawsuit against Obamacare would be like blaming George W. Bush for Chief Justice John Roberts vote to uphold Obamacare because Bush appointed him.  Moreover, TN’s involvement in the suit is very unlikely to have affected the ultimate outcome. However, the fact that Cooper refused to join the lawsuit when the governor and legislature expressly asked him to shows a lack of respect for the political branches which is very problematic and reflects poorly on the Justices’ decision to appoint him.

Overall, proponents of rejecting the justices have not made a compelling case.  In fact, it is hard to argue that they make a weak case for not retaining the justices. They make a good case that Justices are Democrats, but they have not made a strong case that their partisan affiliation influences their decision making.  However, the Justices are partly to blame for their problem and should have been and should continue to be more careful in their associations with Democrats.  The hiring of Democratic campaign operatives (including those associated with President Obama), strong support from liberal groups, and hiring of Democratic Governor Phil Bredeson’s Legal Counsel as Attorney General in 2008 suggests a strong inclination toward the Democratic Party that may influence their opinions. 

In a state that has clearly been moving toward the GOP for twenty years and a state that has been center-right for even longer than that, the Justices have shown a tin ear in their political decision making. To reach the TNSC, judges have to possess certain political skills to navigate the appointment process, relate well with other political actors, and be judicious in the decisions.  Consequently, surely they could find Democrats operatives connected with moderate Democrats, instead of the national party, who could run their campaign. Moreover, they should have appointed an Attorney General more representative of the state’s ideological preference in 2008. This tone deaf decision making is potentially worrisome if they receive another term. While the evidence points to supporting the judges, the judges could learn to be more judicious.