Attorneys: Judges, politics don’t mix

On June 10, 2009, in News 2009, by Mark Norris

Supreme Court case comes as merit plan debated

By Christopher Conley, Memphis Commercial Appeal
June 10, 2009

Local attorneys and judges say a U.S. Supreme Court decision warning elected judges to avoid ruling in cases that involve big-money donors highlights the importance of keeping politics out of judicial selection.

The decision in a West Virginia case comes at a time when judicial selection is an issue in the Tennessee legislature, where the 15-year-old merit-selection plan is under attack.

Some conservatives are pushing to return to contested elections for higher court justices.

On Tuesday, Senate Majority Leader Mark Norris, R-Collierville, postponed until Thursday compromise legislation that would replace the current judicial selection process with a new, 17-member Judicial Nominating Commission. House and Senate speakers would appoint the commission’s members, whoever they wish, as long as 10 of them are lawyers.

Opponents to the change argue it would bring more politics into the judicial selection system.

“I cannot speak for the Bar,” said attorney Lucian Pera, chairman of the Tennessee Bar Association’s committee on ethics and professional responsibility, “but my view is that (Monday’s Supreme Court ruling) appears to be a good and sound decision.”

The 5-4 decision came in the case of Don Blankenship, a West Virginia coal company executive who spent $3 million of his own money to oust one West Virginia Supreme Court justice and elect a replacement.

In Tennessee, the five Supreme Court justices and 24 appellate judges currently are appointed by the governor from nominees screened by a 17-member commission. They face a yes/no retention vote by the electorate at the next statewide biennial August election, and again every eight years.

The rest of the Tennessee judiciary — including Criminal Court, Chancery and Circuit Court judges — are elected, which means they have to run campaigns and raise money.

Those elections usually involve small contributions, often from lawyers’ groups.

“But we do elect judges,” Pera said, “and they do have to raise money to run, and that does lead to issues about when they may not be seen as completely impartial, especially when some litigant or lawyer appearing before them has contributed money to their campaign.”

“I have never seen that happen in 25 years on the bench,” said Shelby County Circuit Judge Robert Childers.

“With those kind of (small) amounts … as a practical matter, it doesn’t make a difference,” Childers said.

Lawyers typically “contribute because they want to get qualified people on the bench,” Childers said.

He said he will recuse himself from a case if there is any question of impartiality.

Memphis attorney George T. “Buck” Lewis, this year’s Tennessee Bar Association president, is hoping the legislature does not want to revert to elections for Supreme Court and Appeals Court justices.

“What we have seen in Alabama, Georgia and West Virginia … are multimillion-dollar campaigns, bitter campaigns,” Lewis said.

“We have not seen any of that in Tennessee,” he said.

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