Gavel Grab

Tennessee Judge Lambastes ‘Judi-idiocracy’ From Supreme Court

Chancellor Atherton

Chancellor Atherton

Public officials, including an elected Tennessee judge, are in the news over their decisions about applying (or not) the U.S. Supreme Court’s ruling that found a right to marriage for same-sex couples.

Hamilton County, Tennessee Chancellor Jeffrey M. Atherton has denied a heterosexual couple’s divorce petition with an unusual legal analysis “that has made waves around the world,” according to The Washington Post. He wrote that the effect of the Supreme Court’s marriage ruling “is to preempt state courts from addressing marriage/divorce litigation altogether.” He laced sarcasm and criticism together in one spicy sentence:

“Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, communism, fascism, theocracy, and even despotism, implementation of this apparently new ‘super-federal-judicial’ form of benign and benevolent government, termed ‘krytocracy’ by some and ‘judi-idiocracy’ by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.”

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In Tennessee, a Drive to ‘Politicize’ the High Court

Tennessee Supreme CourtLong-simmering tensions over politicizing the Tennessee Supreme Court, or keeping it impartial, are documented in an unusually long Memphis Daily News article about the process to fill a new vacancy on the bench.

Republican Lt. Gov. Ron Ramsey, who spent heavily and unsuccessfully to unseat three Democratic appointees last year, is “Clear in [His] Push to Politicize Court,” the newspaper’s headline declares. Ramsey has said he looked forward to “to this historic opportunity to give Tennessee its first ever Republican Supreme Court majority.” Gov. Bill Haslam, who will appoint the next justice, is a Republican.

Among those who defend the idea of non-politicized court is former Tennessee Justice Penny White. “Courts are not political bodies. They were never intended to be. Our forefathers didn’t intend that, and we shouldn’t try to transform them into yet another political branch of government,” said White, a law professor now. She was removed by voters in a 1996 retention election. Read more

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Column: Uncertainty About Judicial Selection in Tennessee

What’s next in implementing a constitutional amendment changing the way state Supreme Court justices are chosen in Tennessee? A columnist says it’s in the hands of the legislature, and so, “God help us.”

Approved last year, Amendment 2  includes appointment by the governor and retention (up-or-down) elections when a judge seeks a new term. The amendment adds a requirement for the legislature to confirm the appointees.

Frank Cagle, former managing editor of the Knoxville News Sentinel, writes in a column in that newspaper that  “the disorganized mess left in [the amendment’s wake must be sorted out by the dysfunctional Legislature — God help us.” He notes that “the Legislature last session failed to come up with a plan [for confirming judges]. And there is a real likelihood that it may not next session either.” Read more

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Report: Retention Election for Tennessee Court in 2016

Tennessee Supreme CourtThere was a measure of confusion last week about when voters would cast ballots over retaining a new Tennessee Supreme Court justice, who will be appointed soon in the wake of another judge’s retirement (see Gavel Grab). Now, a media outlet reports that it appears the retention election will be held in August 2016.

An official in the office of Secretary of State Tre Hargett told the Tennessee Report the election will be held next year. The election will be held assuming whomever Gov. Bill Haslam, a Republican, appoints to fill the new vacancy chooses to seek retention to a new term. The process would play out under a constitutional amendment adopted by Tennessee voters last year.

Justice Gary Wade recently announced his decision to retire, creating the vacancy. An Associated Press article noted that the appointment by Haslam is expected to shift the court from a majority of Democratic appointees to a majority of Republican picks.

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Concern Over the Future of Tennessee’s High Court Grows

Tennessee Democrats responded Wednesday to Lt. Gov. Ron Ramsey’s stated partisan goals for the state Supreme Court, The Chattanoogan reports. House Democratic Caucus Chairman Mike Stewart said that governors have followed a “long tradition of merit-based selection that has for decades made Tennessee Courts a model for non-partisan, fair-minded decision making.” He further explained:

“The Courts are not intended to be just another partisan arm of government.  Our judges have an independent duty to uphold the laws passed by the peoples’ representatives – a duty that transcends the judges’ personal political beliefs.  We have seen in Washington and in other states that infusing the judicial selection process with politics has led to charges of bias and in some cases even corruption – charges that have threatened to undermine the integrity of the judiciary.  We don’t need that sort of thing here.”

Stewart ended with a call to “Tennesseans of both parties” to demand a continued apolitical selection process. Gov. Haslam will have the opportunity to nominate a third justice to the state high court after Justice Gary Wade retires in September. See the Knoxville News Sentinel to learn more about Wade, and watch Gavel Grab for developments on the selection process.

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Justice’s Retirement Sparks Debate Over Potentially Politicized Court

Lt. Gov. Ramsey

Lt. Gov. Ramsey

In the wake of Justice Gary Wade’s retirement announcement, Tennessee Lt. Gov. Ron Ramsey “congratulated the justice he’d previously tried to unseat during a contentious retention campaign in the fall,” The Tennessean reports. In his statement, Ramsey said he “look[s] forward to this historic opportunity to give Tennessee its first ever Republican Supreme Court majority.”

Legal experts in the state disagree on how Justice Wade’s replacement may affect the court. Former Justice William Koch Jr. contends that Gov. Haslam’s choice will have little impact on decisions. Paraphrasing U.S. Supreme Court Justice Sandra Day O’Connor, he commented that “a professional, wise Republican and a professional, wise Democrat more often than not land at the same place.”

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Tennessee Lawmakers Untangle New Judicial Selection Law

Justice Gary Wade

Justice Gary Wade

The impending retirement of Tennessee Supreme Court Justice Gary Wade is highlighting confusion about the new process of judicial selection in the state. Last year, voters approved Amendment 2, which constitutionally altered the process. According to the Knoxville News Sentinel, vague language in the law is causing confusion over when the new nominee will face a retention election – in 2016 or 2022.

Under the old law, a newly appointed judge would be approved or rejected by voters in the next state wide August election – no more than two years after his or her nomination. State Sen. Brian Kelsey, the chief legislative drafter of the amendment, says the nominee should stand in 2022 because he will be taking over a nearly complete term. Others disagree, including Nashville lawyer Lee Barfield, who, according to the article, “played a lead role in the Yes on 2 campaign in support of the judicial amendment.” At the time he commented on this scenario:

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Tennessee Governor Asks for Second Round of Judicial Candidates

haslamDid Tennessee Gov. Bill Haslam ask for a new slate of candidates from a judicial vetting panel because he found the first slate lacking of a worthy nominee? He’s not telling.

Haslam is working to fill a vacant Criminal Court judgeship in Hamilton County. He recently asked the Governor’s Council for Judicial Appointments for a new list of three candidates for the post. According to the Chattanooga Times Free Press, a Haslam spokesman said the executive order by which Haslam created the selection process “gives him the authority to do it, and requesting the second panel is part of his thorough process to find the best fit for the position.”

A news release from Haslam’s office also sidestepped stating a reason why the governor did not nominate someone from the panel’s first list, according to Knoxblogs.com. To learn about Haslam’s executive order last year, see Gavel Grab.

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Tennessee Legislative Gridlock Threatens Its Authority Over Judges

Gov-Haslam-headshotAfter a 2014 referendum, the Tennessee legislature should have the final say on gubernatorial appointments to the state judiciary. The House and Senate may not yet have the authority to do so, due to a disagreement on how many votes should be required from each chamber to reject an appointee.

The Memphis Daily News reports that a vacancy on the Shelby County Chancery Court has brought this question to light. Attorney General Herbert H. Slatery is of the opinion that Governor Bill Haslam’s appointee will not likely require legislative approval. “If the Legislature does not enact any such rules, then presumably it has not deemed any such rules to be necessary,” said Slatery in a legal opinion written at the request of state Rep. Jon Lundberg. “But that would in no way affect or impede the ability of the Governor to make judicial appointments.”

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TN House Debates How to Confirm Judges Under New Amendment

The Tennessee legislature is debating the specifics of an amendment approved by voters in November that will change how appellate judges are selected. The legislature will soon have the authority to confirm the governor’s appointee, but according to Gavel-to-Gavel, the chambers first need to agree on what a confirmation – or rejection – should entail.

The Senate originally introduced language that would allow a single chamber to veto, but required only a quorum to confirm. That provision failed to survive the Senate Judiciary Committee, which proposed that a majority in each chamber be required to confirm. That version passed the Senate, and a similar bill is before the House.

Alternatively, a “points” system has been proposed, where each representative’s vote would equal one point and each senator’s worth three. The candidate would need a total of 100 points to be confirmed or rejected outright, and any other result would result in “no action,” causing a default confirmation in a set number of days.

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