Thursday, April 16, 2009
Chief Justice Defends Tennessee Plan, Calls Direct-Elections for State Judiciary "Ridiculous"
Posted by Jackson Baker on Thu, Apr 16, 2009 at 12:15 PM
Janice Holder, chief justice of the Tennessee Supreme Court, dispensed with judicial caution Wednesday, vigorously defending the current Tennessee Plan whereby panels of legal professionals screen candidates for state appellate courts and publicly evaluate them before yes-or-no votes in retention elections.
Addressing the downtown Kiwanis Club at The Peabody, Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. "I'm gong to talk about basketball," she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, "and show bits and pieces of video of some of these games where there were bad calls."
After asking rhetorically, "Don't you think that's a more democratic way to go about it?", she answered her own question this way: "It is ridiculous, isn't it? You wouldn't want your officials to be elected." Then came her clincher: "Judges are like those officials. You relay on them to call the game fairly."
She pointed out that the current system was due to sunset in July unless the current legislature reaffirms it and noted, too, the existence of legislative proposals for direct election as well as for modified versions of the current system.
Holder reviewed the mechanics of the Tennessee Plan, whereby a Judicial Selection Commission conducts thorough reviews of candidates for a given appellate positions and recommends lists of appointees to the governor, who can accept one of the nominees or reject the list and ask for a new one. She also explained the companion process whereby a Judicial Evaluation Committee provides advisories on whether sitting appellate judges should maintain their positions in up-or-down retention elections.
"The irony is that what we have is the envy of other states, but we are very much in danger of losing it," Holder said, going on to note several instances of million-dollar expenditures in other states' partisan judicial elections . She described instances in which some of the winners were seemingly influenced later on to make decisions on behalf of special-interest donors.
"Believe me, the entire country is watching Tennessee right now," she said.
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Chances are, the legislature is too busy worrying about socialists, baggy pants and who buys lottery tickets to screw this up, too. Unless of course, they forget to reaffirm the current system, which is probably a very real danger.
Chief Justice Janet Holder's effort to subordinate the Supreme Court to the Legislature and thereby destroy the checks and balances of the three separate but equal branches of government, is improper and violates the Constitution.
Former Supreme Court Judge Allison Humphreys said it best, in his 1972 dissenting opinion in the Higgins vs Dunn case when he said: "Have we not like "Esau" sold our precious birthright, equality and freedom, for a mess of pottage, a cheap easy way to be retained in office."
I believe it my duty as a lawyer to report Chief Justice Janice Holder to the Court of Judiciary for her conduct in making the speech before the Kiwanis Club in Memphis, which violates the Judicial Canon of Ethics. She should be severly criticized by the Court of the Judiciary for her blatant disregard of her oath of office. As I believe her conduct in this matter makes her unfit to be a Judge.
Go read the language of the Tennessee Constitution for its plain meaning.
Had not self-serving appellate judges and special judges and justices sitting for them ignored said plain meaning to save themselves the effort of campaigning state-wide to stay in touch with the people, as the drafters of our Constitution clearly decided was the least of evils, we wouldn't have the unconstitutional system at the appellate level we have today.
Why don't we have the same system at the trial level? What's good for the goose is not good for the gander? Or is this issue being prudentially kept off the table until the status quo for appellate judges is set in stone?
Were judges not corruptible back when the drafters called for elected judges? Were they stupid compared to the Janice Holders among us?
Geee... given the rousing success of elected shcool boards, what could possibly go wrong with turning the judiciary over to a bunch of career politicians, and letting lobbyists, PACs etc. pay their way into office?
Recently, harsh critics of our judicial selection system of merit selection, performance evaluation and retention elections for Tennessee’s appellate judges have unfairly assailed Supreme Court Justices and other members of the judicial branch for expressing their viewpoints in support of the current system. These critics have suggested that it is inappropriate or even unethical for judges to comment on matters related to the way in which judges are selected. Judges, and particularly Supreme Court Justices, who lead a separate and co-equal branch of government have a responsibility to speak for that branch. There is no legal or ethical prohibition restraining that responsibility, nor should there be.
The architects of our Constitution established three branches of government – the executive, legislative and judicial branch. Each of those branches is given specific responsibilities. The balance of power between those three branches has led to the world’s most successful model of self-government. When deciding cases, all judges are sworn to do so in a fair and impartial manner. In addition to the role of judge or impartial referee, justices of the Supreme Court, particularly the Chief Justice, as the head of the co-equal judicial branch, have a responsibility to advocate for measures which lead to the most effective administration of justice.
Suppose, for example, the Governor was to decide that he believes that the terms of state senators should be shortened from four years to two years. The Speaker of the Senate would be expected to speak to the merits of that proposal. Indeed, we would expect that the speaker would talk with the media and colleagues and try to persuade them to his viewpoint. No one would find this inappropriate or label it as unethical lobbying. The Justices of the Supreme Court and the judges of the other courts are doing no less than fulfilling their responsibilities as members of a co-equal branch of government when they advocate for their viewpoint on judicial selection.
The Code of Judicial Conduct adopted in virtually every jurisdiction in this country says that each judge has an affirmative responsibility to diligently discharge their administrative responsibilities. Judges are ethically permitted to speak concerning the administration of justice.
The Tennessee Bar Association, representing the views of more than 80% of its members, and the unanimous view of its Board of Governors, continues to advocate for a continuation of a system for merit selection, performance evaluation and retention elections for Tennessee’s appellate judges. This viewpoint has achieved widespread support among the business and civic community. Attacks upon judges for sharing their views are terribly misplaced in our democracy.
George T. Lewis
Tennessee Bar Association, President
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