Three of the Iowa Supreme Court justices who ruled in favor of gay marriage in 2009 faced opposition from anti-gay groups the next year when the state’s voters had to decide whether to keep them on the bench. The justices decided to stand above the fray: no interviews, no fund-raising, no campaigns to speak of. They all lost, by about a 10 percent margin.
Three of the Tennessee Supreme Court’s five justices faced a politically motivated challenge this year when they were on the ballot in a similar yes-no retention election. They responded by campaigning across the state, raising money, and attacking their opponents for engaging in a political power grab.
The result: the three justices were retained by a 14 percentage point margin, wider than expected even by the justices’ supporters. And the state’s Republican lieutenant governor, Ron Ramsey, who masterminded the attempted ouster, was forced into pretending that the defeat vindicated his strategy to go after the justices.
The lesson for supporters of an independent judiciary seems too obvious to need stating, but here goes: You cannot win the game unless you play.
Tennessee is one of the states to use a system of merit selection and retention elections to try to keep politics out of judicial races. But the system still allows political games to be played by opportunistic politicians or advocacy groups. Judges who find themselves targeted set themselves up to lose if they ignore seriously mounted opposition campaigns. And the bar and others who care about an independent judiciary need to step up to the plate to help.
Critics of judicial elections are right to worry about the cost of such campaigns. Special interest money on either side poses a real risk of putting a heavy thumb on one side or the other of the scales of justice.
In the Tennessee race, more than $1 million was spent on television advertising by the opposing campaigns, according to a compilation by Justice at Stake, a nonpartisan organization that advocates a fair and impartial judiciary. “Partisans and special interests opened their checkbooks to send a message of intimidation to courts not just in Tennessee, but across America,” said Bert Brandenburg, the group’s executive director.
Significantly, the opponents were outspent by the justices’ own campaign and the independent group supporting them. Justice at Stake counted $474,150 in TV spending by Tennessee Forum, the anti-retention group funded by Ramsey’s political action committee, and another $63,390 by a second group funded by Americans for Prosperity, the heavyweight conservative organization financed in large part by the Koch brothers.
On the opposite side, the justices’ own campaign spent an estimated $579,870 in joint ads, while Chief Justice Gary Wade separately spent another $94,980. In addition, Tennesseans for Fair Courts, a group formed by a lawyer in the Nashville suburb of Hendersonville, spent about $215,840 on ads supporting retention.
Wade and the other two justices targeted, Cornelia Clark and Sharon Lee, were all appointed by a former Democratic governor, Phil Bredesen, from among candidates forwarded by a bipartisan selection commission. Wade and Clark both had two decades’ experience in the judiciary before their appointments in 2006 and 2005 respectively. Lee had six years’ experience as a judge when Bredesen picked her in 2008 during his second four-year term.
Tennessee has seen nothing but red politically since Bredesen left office in 2011. Ramsey, lieutenant governor as speaker of the GOP-controlled state Senate, clearly wanted Republicans to control the state Supreme Court as well. Interestingly, the state’s Republican governor, Bill Haslam, took no part in the campaign and in fact called the attacks on the justices “dangerous.” But it would have been Haslam to appoint any new justices if any of the incumbents had been ousted.
The campaign against the justices consisted of a mish-mash of legal and political sloganeering. Despite the justices’ experience in the judiciary, Ramsey’s group said all three were “partisan liberals” who were pursuing a “liberal agenda.” Among the specifics, the court was blamed for selecting a Democrat as attorney general, Robert Cooper Jr., who declined to join states with Republican attorneys general in the legal challenge to Obamacare.
The justices were also accused of being soft on crime and insensitive to crime victims. One ruling specifically cited followed established law in reversing a murder conviction because of the prejudicial effect of introducing pictures of the victim unrelated to the crime. The justices were also depicted as beholden to trial lawyers, who were said to be “funding the campaign to keep them in power.”
Brandenburg fretted that the justices had been forced to become “professional fundraisers, often soliciting money from parties who will appear before them in court.” The justices were right, however, not to unilaterally disarm themselves in the race. Instead, they worked the political circuits hard. On the eve of the election, Clark and Lee held a rally in Nashville to warn against groups who did not believe in fair and impartial courts.
With the election over, the court’s supporters expressed gratification, but worried that more such campaigns could be in the offing a warning echoed by national groups following the issue. If so, supporters of an independent judiciary will need to do what it takes to counter ill-founded attacks that jeopardize the goal of fair and impartial justice.