Former Tennessee Supreme Court Justice Penny White knows all to well what can happen when outside groups use misinformation and intimidation to try to influence the outcome of a judicial election.
White, who in 1996 became the only state judge to lose a retention election under the so-called Tennessee Plan, believes voters end up the true victims when they are unknowingly tricked by self-serving politicians who hide their true agendas from the public while plotting to control the judicial branch.
“A society that loses its independent judiciary because it is controlled or intimidated has lost the very vehicle intended to protect citizens from the abuses of power and to safeguard their freedoms against government overreaching,” White told me last week.
White is now a distinguished professor of law at the University of Tennessee, where she discusses the topic with her students. She has also spoken to judges in 34 states about her own experience and guest lectures each January at Yale University on the subject.
Problems can arise, she cautions, when murky, poorly identified organizations or even groups that identify themselves with innocent-sounding names spend a significant amount of money in an attempt to influence a judicial election.
“Common sense tells us that business and special interests do not spend millions without expecting a payback,” she said. “The quid pro quo campaign finance is expected for the executive and legislative offices. People expect to buy influence, or to put it more kindly, to purchase representation.”
But not the courts, which are not intended to be representative bodies. The judicial branch, White told me, is expected to apply the same rules fairly — no matter who has a dispute.
White is a Sullivan County native who practiced law in Johnson City before going to the bench — first as an elected Circuit Court judge. She was next appointed to the state Court of Criminal Appeals and then later to the state Supreme Court.
She lost her retention bid to the latter when the Tennessee Conservative Union, death penalty supporters and Republican leaders attacked her for a decision in an appeal of a death penalty case. It’s important to note that at the time of her retention vote, White was prohibited by judicial ethics from discussing the details of that case because it was still being appealed.
“I did not want to break the ethics rules for my own self- interest because I thought that would be a very poor example to set,” White said.
After her defeat, however, the state Supreme Court changed those rules.
White’s experience in 1996 has become an important lesson, and one that should be particularly relevant to state voters this year. That’s because Lt. Gov. Ron Ramsey and other top Republicans have targeted three state Supreme Court justices for defeat in this year’s judicial retention elections. Ramsey says the three — all appointed by former Democratic Gov. Phil Bredesen — aren’t pro-business enough to suit him. He also has thrown in “they are soft on crime” for good measure.
Ramsey is expected to be helped in his efforts with “dark money” from sources outside Tennessee. One of those sources is said to be Americans For Prosperity, founded by fossil fuel magnates Charles and David Koch. Politico reports the Koch brothers have also taken a keen interest in judicial races in other states.
White told me last week her experience and the situation that the three justices now face are “totally different and yet similar.” In her case, White said the organized campaign against her “was fast, unannounced and focused totally on me as an individual.” And while the attacks against her were based on falsehoods, the effort did not involve large amounts of money from well-heeled interests inside Tennessee or outside of the state.
“The current court has some notice, but they are being attacked by the same money-backed interests who have been buying state courts all over the United States,” she said.
White has some advice for Tennesseans when they go to the polls this year to decide if Chief Justice Gary Wade and Justices Cornelia Clark and Sharon Lee should be returned to the state’s highest court.
“Be skeptical of those who would attempt to bully the bench,” she says. “Ask yourself: What’s in it for them? What do they expect to gain?”
She also suggests voters ask themselves why an elected official would be so eager to bring outside money into Tennessee in an attempt to influence the outcome of a Supreme Court election.
White also advises Tennesseans to ask themselves: “Why would an elected official want to diminish the separation of power between the three branches of our government, which is one of the tenets of the American constitutional democracy?”
The last is a question I really want answered.
Robert Houk is Opinion page editor for the Johnson City Press. He can be reached at firstname.lastname@example.org. Like him on Facebook at www.facebook.com/JCPressRobertHouk and follow on Twitter at Twitter.com/houkRobert