Judging the Judges

When voting for Supreme Court judge, nobody in Tennessee has information on our judicial candidates, at least with respect to the way they have voted on cases and their judicial philosophy. The Tennessee Bar Association essentially won’t allow it.

A lot of people have asked us if we have information about the two Supreme Court Judges who are on the ballot for a “yes” or “no” retention vote. Here is what you need to know … and the only thing you really can know about these “candidates.”

First, we do not have information on judicial candidates, at least with respect to the way they have voted on cases and their judicial philosophy. Nobody does.

It is not for lack of effort, however. We tried to do surveys of the judges in 2006, and none of them would answer. Since then, the Tennessee Bar Association has essentially asked judges to take a pledge not to complete any surveys. At some point FACT hopes to assemble of team of lawyers concerned about the true lack of information voters have who will help us do our own evaluation of the opinions these judges sign onto and evaluate them ourselves. Until then, we have no good information to give you on these candidates. But, that being said, there are a few things you might want to consider as you decide how to vote.

How We ‘Elect’ Judges in Tennessee

First, the state Constitution says, “the Judges of the Supreme Court shall be elected by the qualified voters of the state.” Regular contested elections were held until the early 1970’s, when the legislature passed a process by which potential Judges would be recommended to the Governor by an appointed panel of people. The Governor would then pick someone to go on the Court. At the time of the next general election, that person would be up for a “yes” or “no” retention vote. Except for one rare possibility, the legislature forbids anyone from getting enough signatures on a petition and running for Supreme Court Judges. There was a lawsuit over the constitutionality of this process, but a special panel of fill-in Supreme Court judges picked by the Governor at the time ruled that the appointment-retention process satisfied the Constitutional requirement that Judges be elected.

Second, the two Supreme Court judges up for retention were part of two different panels of three names provided to the Governor by an appointment panel composed of persons recommended by various Bar Association organizations. The Governor then appointed from those lists of three names, the two persons on the ballot.

What Will Your Vote Communicate?

So, if you want to make a “negative” statement about things like judicial activism, Tennessee’s method of electing Supreme Court judges, etc, then the best way to make that statement is to vote “no.”

If you approve of the current system and current judicial philosophy that prevails in this country (and state), then the best way to communicate that is to vote “yes.” It would be my opinion that not to vote would leave the Judges, Governor and legislature in a position of not knowing why there were fewer people voting in the judicial elections compared to gubernatorial, congressional or state legislative races. Not to vote will leave them wondering if the low vote totals signify voter apathy or an unwillingness to vote for someone you don’t know anything about.