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Friday, August 22, 2014

Courts - "Lessons from Tennessee Supreme Court retention election"

The ILB had a post on August 12th, quoting several reports of Tennessee's Aug. 7th retention election, where three Supreme Court justices, all Democrats, faced a serious opposition campaign led by conservatives, who claimed the justices were "liberal" and "soft on crime." All three were retained, by a vote of about 57%.

Today, Brian T. Fitzpatrick, a professor of law at Vanderbilt Law School, has a commentary in The Tennessean, that begins:

Earlier this month, voters decided to retain three of the current justices on the Tennessee Supreme Court by the narrowest margins in our history of retention referendums for Supreme Court justices.

The vote followed a well-financed campaign against them by the lieutenant governor and conservative political groups. The justices prevailed only after they and their supporters spent more than $1 million to explain why they should keep their seats even though they are liberal Democrats in a state full of conservative Republicans: They will follow the Tennessee Constitution, support gun rights and support the death penalty.

I was not surprised by the result — as I explain, judges almost never lose these races — but I have been surprised that so many people seem to think that it was a shame the justices had to fight so hard for their jobs. Although I am sure the justices did not enjoy going through a tough vote, it was good for them — and for our system of justice.

Tennessee is one of a number of states that use yes-no referendums to decide whether to retain judges. Other states use contested elections or leave it to the governor to reappoint judges. For most of the history of retention referendums in Tennessee and elsewhere, these were sleepy affairs. Judges have no opponents in these races, and they usually win by wide margins. In the 40-year history of retention referendums in Tennessee, only one justice has ever lost. The record nationwide is not much different: Judges almost always win these races with 70 percent to 80 percent of the vote.

This is a problem if you believe that judges — like all other public officials — should be accountable to the public. If good judges and bad judges, mainstream judges and extreme judges, honest judges and corrupt judges are all retained in equal numbers, the system cannot hold judges accountable for misdeeds and bad decisions. For this reason, many legal scholars have criticized retention referendums and urged them to be replaced with better ways to keep judges accountable. * * *

Retention referendums actually might have some potential to become real tools to hold judges accountable. For those of us who enjoy living in a democracy, this is an unqualified good.

Posted by Marcia Oddi on August 22, 2014 08:40 AM
Posted to Courts in general