Analysis: Revolt within the state legislature

On June 14, 2009, in News 2009, by Mark Norris

Partisan squabbling is nothing new for Democrats and Republicans. But this year, legislators found themselves drawing lines within the parties on issues like Supreme Court elections and gun laws. By Richard Locker, Memphis Commercial Appeal June 14, 2009 NASHVILLE — This year’s Republican takeover of the Tennessee legislature has increased partisan tensions, as expected. But […]

Partisan squabbling is nothing new for Democrats and Republicans. But this year, legislators found themselves drawing lines within the parties on issues like Supreme Court elections and gun laws.

By Richard Locker, Memphis Commercial Appeal
June 14, 2009

NASHVILLE — This year’s Republican takeover of the Tennessee legislature has increased partisan tensions, as expected. But it’s also unearthed intraparty fissures between moderates and the more extreme wings of both parties.

Democrats fought among themselves over gun bills, charter schools and the state budget.

The internecine fights were most evident on the Republican side, over how judges of the Tennessee Supreme Court are selected.

It broke into open warfare two weeks ago when conservatives mutinied against a compromise drafted by GOP colleagues that would maintain for another two years Tennessee’s merit-selection, retention-election system for choosing Supreme Court justices and other appellate judges.

The issue boils down to whether Tennessee’s top judges should be elected or appointed. It has huge ramifications for the judicial branch and for all Tennesseans. Just last week, the U.S. Supreme Court weighed in on the election of a state Supreme Court judge in West Virginia, a case symbolic of the worst negatives of judges raising millions of dollars to run state election campaigns.

When Republicans assumed the legislative majority in January, conservatives still angry over a 2000 state Supreme Court ruling on abortion rights expected to push through a constitutional amendment nullifying that ruling and instituting direct election of Supreme Court justices.

After years of failure under Democratic rule, they finally succeeded this year with step one of the long amendment process.

But it became apparent that compromise on judicial selection was likely. Most Democrats and moderate Republicans basically favored retaining the current system, but neither side had the votes to do everything it wanted.

Senate Majority Leader Mark Norris, R-Collierville, and a bipartisan group of House leaders drafted a compromise that:

— Replaces the selection commission with a new nominating commission, and gives the two speakers freedom to appoint whomever they wish to it, as long as 10 of the 17 members are lawyers.

— Extends the appointment and retention-election system for two years, when lawmakers will revisit the issue before the 2014 judicial elections.

— Calls for a state constitutional convention — Tennessee’s first since 1977 — to consider rewriting the section on judicial selection.

But when the plan was presented on the House and Senate floors, conservatives demanded open elections now.

Looking at Norris, Sen. Dewayne Bunch, R-Cleveland, likened moderates in his party — who he said were “ignoring the Constitution” — to New York City bystanders who watched the “savage beating of a young woman with depraved indifference.

“… My concern is, the opportunity to do something here is fleeting and we are too concerned with other goals and other ambitions that we will compromise a Constitution.”

Turning to appointed judges, Bunch continued, “We don’t have a judge sitting on the Supreme Court or the appellate courts who hasn’t been put forth by special interests and we’re not changing it with this amendment.”

Norris fired back: “You don’t have the votes to do all the lofty things you’d like to do. It’s well and good to play to the audience, but it doesn’t work here.”

But Bunch wasn’t through admonishing colleagues on his side of the aisle. He declared flatly that a vote against immediate, direct elections would be used against them at election time.

Moderates bristled at the harsh rhetoric.

Said Sen. Doug Overbey, R-Maryville: “I heard an accusation that those of us who support judicial selection are doing it for reasons other than a belief that it’s the best policy for Tennessee. I reject that.”

Sen. Jamie Woodson, R-Knoxville, said, “Some use the Constitution as a cloak for a political agenda. I believe in that agenda; I’m pro-life. But the tactic is better suited for Machiavelli: The ends justify the means.”

Sen. Mike Faulk, R-Church Hill, warned that as campaign manager for three Republican lawyers who unsuccessfully ran for the state Supreme Court in 1982, “I have firsthand knowledge about what it’s like to raise money to run for the state Supreme Court, and I have firsthand knowledge about what a toll it takes on a member of the judiciary to conduct a campaign.”

The House debate mirrored the intraparty bickering in the Senate. When Rep. Joe McCord, R-Maryville, presented the compromise there, conservatives railed against it in the House, too.

“When we start letting our Supreme Court play fast and loose with the Constitution and we don’t stop them, we don’t have a Constitution. It’s up to us to pull our activist judges back in line,” said Rep. Frank Nicely, R-Strawberry Plains.

“All my political life, I’ve heard Republicans say how they respected the Constitution and how they were different from the Democrats and when we got in power, we were going to do things different. We were going to be strict constitutionalists. Well I see now that when it comes to the Constitution, most of the Republicans have no more regard and don’t respect the Constitution any more than the Democrats. ”

Rep. Mike Bell, R-Riceville, decried “the black-robed justices who have been walking our hallways lobbying us on this issue for the last several months. They’re doing everything they can to protect their meritocracy.”

Bell threatened colleagues on both sides of the aisle with retribution in campaigns. “For those on my side of the aisle, don’t think for a moment the other side won’t hesitate to use this vote against you in the next election. … And for those on the other side of the aisle, I promise your voters will see this vote again.”

Democrats’ urban-rural split

Democrats have also collided in this year’s legislative session, but with their new practice of caucusing in secret, the results haven’t been laid quite so bare. When they are, it’s often an urban-rural split.

Their most pronounced difference was over allowing gun-permit holders to carry guns into restaurants, bars and other places serving alcohol. In the Senate, four Democrats, all from rural districts where the National Rifle Association holds more sway, voted with Republicans to override Democratic Gov. Phil Bredesen’s veto of the bill. Nine Democrats, from Memphis, Nashville and Chattanooga, voted to uphold the veto.

In the House, 20 Democrats voted to override the governor’s veto, all but three of them from rural and suburban areas, while 26 voted to uphold the veto. Eight represent rural districts.

Most telling was the split between Democratic Reps. Gary Moore and Mike Turner, two Nashville firefighters who often vote alike. But Moore voted to override; Turner, the caucus chair, sided with the governor.

More moderate Democrats have also chafed over the rare demand by liberal colleagues to invoke the “unit rule” on expanding charter schools. The rule decrees that if a majority of the caucus takes a stand, all members of the caucus are bound to it.

Charter schools are public schools funded with taxpayer money on the same per-pupil basis as regular schools, but chartered by nonprofit entities operating outside the oversight of local school boards. State law limits the number of charter schools to 50 statewide and 20 in Memphis, and restricts their enrollment mostly to students from failing schools.

Charter school advocates — including such prominent Democrats as President Barack Obama, his Education secretary, Bredesen and Nashville Mayor Karl Dean — favor their expansion as laboratories for innovation. But some Democratic-leaning groups like the Tennessee Education Association oppose them, arguing that they siphon money — and if allowed, the best students — away from traditional public schools.

Bound by the unit rule, House Democrats killed the bill but Republicans are attempting to resurrect it.

“We have not changed our caucus position. We’ve asked everyone to hold our positions on that but I don’t know if everybody will or not,” said Turner. “If somebody breaks, there won’t be any horse heads in the bed in the morning. There’ll be some teeth gnashing, but there won’t be any permanent damage.”

House Democrats also want to use more reserve funds than the governor favors to avoid laying off hundreds of state employees.

Richard Locker is Nashville bureau reporter for The Commercial Appeal. Contact him at (615) 255-4923.



The issue in Tennessee hinges on whether the retention elections for appellate judges, in effect since 1994, violate the state Constitution’s requirement that judges of the Supreme Court “shall be elected by the qualified voters of the state.”

Conservative Republicans say they do, by not allowing the open, contested elections, which they favor for positions on the Supreme Court.

But moderate Republicans, most Democrats and lawyers’ groups argue that the provision for citizens to vote “yes” or “no” on retaining each of the 29 appellate judges meets the constitutional mandate.

All state appeals court judges are first appointed by the governor, from nominees screened by the Tennessee Judicial Selection Commission. Then they face voters for the yes-no retention vote at the next state election in August, and again every eight years thereafter. When a judge loses, which has occurred once in 15 years, or retires or dies, the seat is vacant and the appointment process begins.

Conservative ire was fueled by the state Supreme Court’s finding in 2000 of an expansive right to privacy and abortion in the state Constitution. The ruling struck down a series of pre-abortion requirements, such as counseling for women and parental notification, that lawmakers had approved.

Groups including Tennessee Right to Life, Eagle Forum and the Tennessee Family Council see the system as stacked against the nomination of conservatives to appellate judgeships. They say the Judicial Selection Commission is dominated by “special interests” — the Tennessee Bar Association, trial lawyers, criminal defense attorneys and district attorneys general — that rarely focus on the cultural issues important to them.

Most Democrats favor retaining the current system, as do many moderate Republicans and the influential TBA. They recite the negatives involved in judges raising millions of campaign dollars, sometimes from interest groups, to run in contested elections.

The poster child for that view is West Virginia, where the chief justice of the state Supreme Court was the beneficiary of lavish spending for TV campaign ads by a coal industry executive whose company had a case working its way through the state courts. After the chief justice’s election, he joined a 3-2 majority in overturning a $50 million jury verdict against the coal company.

The U.S. Supreme Court ruled last Monday that state court judges should recuse themselves from cases involving people who substantially helped their elections.