Birch vs. His Critics All eyes are on a Supreme Court justice as appellate judges face Yes/No vote. by Jacqueline Marino ust who is a state Supreme Court Justice supposed to be anyway? An independent, free-thinking individual basing his decisions solely on the law? Or a politician-judge accountable, first of all, to the public? Public opinion on this aspect of judicial opinion focuses mainly on a single issue these days – one casting doubt on whether Supreme Court Justice Adolpho Birch will retain his seat after next week’s election. That issue is the death penalty. Tennessee Justice, an umbrella group of law-enforcement organizations and victims’-rights advocates, has launched a concerted effort to oust Birch because he has voted to overturn 12 of 21 death sentences in his five years on the court. If the pro-death-penalty advocates succeed, that will be two notches in their belt. Two years ago, their group led the effort that ousted Justice Penny White because she also voted against upholding death sentences more often than they thought acceptable. This year all state appellate court judges face the same electoral reckoning as did White – a Yes or No vote on their retention. Birch is considered the most vulnerable of the five Supreme Court justices. (Various Tennesseans, including two gubernatorial candidates, continue to seek direct elections of all judges and continue to litigate against the retention formula, arrived upon by a special Supreme Court panel in 1996.) “We’re very unhappy with how the death penalty in Tennessee is not being carried out,” says Mickey Williams, Tennessee Justice coordinator. “We feel some judges have been standing in the way of that because of personal biases.” Contrary to the group’s literature, which portrays Birch as ideologically opposed to the death penalty, his record shows he has upheld it many times as both a criminal appeals judge and a Supreme Court justice. After a speech at the University of Memphis Friday, Birch said he is not philosophically opposed to the death penalty, as anyone can plainly see by examining his record. “I think there is a great deal of frustration [that no one has been put to death in Tennessee since 1960], but I’m not responsible for all that frustration,” he says. “I would hope everybody, even those who oppose me in the most intensive manner, wants a justice on the Supreme Court who will look at all the facts and consider everything in a fair and impartial way.” Birch would not discuss his decision in the Odom case, which pro-death-penalty advocates have focused on the most. In 1996, a death sentence was overturned for Richard Odom, a man convicted of raping and murdering an elderly woman. In his opinion (joined in by White and by Justice Lyle Reid, who opted against a reelection bid this year) Birch wrote that the crime did not warrant the death penalty. Tennessee Justice is traveling the state with its signs and speakers, who include Phyllis Bassett, the mother of murder victim Ronald Bassett. Birch voted to overturn the death sentence for Bassett’s killer. During a stop in Memphis, fewer than 20 people, half of whom were reporters and cameramen, mobilized on the county courthouse steps Wednesday for the group’s press conference under the blazing noonday sun. After the presentation, Williams noted that some people have told him Birch should not be removed because it would leave the court without a black justice. “His skin color shouldn’t be a shield to criticism,” Williams says. Besides Tennessee Justice, few have opposed Birch’s retention. The Tennessee Conservative Union, active in the 1996 battle against White, is keeping its distance, as are Governor Don Sundquist and – so far – the state Republican Party. Perhaps the most glowing recommendation of Birch has come from the Judicial Evaluation Commission, which unanimously supported his retention after asking more than 4,000 lawyers and other legal professionals about his conduct on the bench. The attack on Birch has prompted the National Association for the Advancement of Colored People to adopt an emergency resolution in support of his retention. “Birch is a fine justice,” says Johnnie Turner, executive secretary of the NAACP’s Memphis branch. “These judges should be able to make decisions free of the fear they won’t be elected if they rule a certain way on one issue.” It is unfair to focus on one issue when deciding whether to retain or oust a justice, says Timothy E. Huebner, an assistant professor of history at Rhodes College who is writing a chapter in a book about the history of the Tennessee Supreme Court. “What is most disturbing is this tendency for PACs [political action committees] to emphasize one particular issue,” he says. “That detracts from the fair administration of justice.”