Justice for Sale?

The often thin line between law and politics was again thrust into the spotlight recently when a trio of sitting justices on the Tennessee Supreme Court faced fierce challenges from conservative groups and business interests determined to change the court’s makeup.

Justices on the Tennessee high court are appointed by the sitting governor before facing retention elections. Following every eight-year term, the justices must win another public election. Only one sitting justice had been voted from the court in the 10 years prior to the recent vote.

Tennessee Chief Justice Gary Wade and fellow Justices Cornelia Clark and Sharon Lee all were appointed to the court by former Tennessee governor Phil Bredesen. They became conservative targets after the five-member court appointed Robert Cooper Jr. as the state’s attorney general in 2006. Cooper is a Democrat.

Although campaigning and fundraising for Tennessee Supreme Court posts essentially has been unheard of for decades, this year’s contest saw the three targeted candidates hosting fundraisers and campaigning statewide against a barrage of criticism in television ads and other media sponsored by their detractors.

In 2006, Justice Clark was reelected with 74 percent of the vote without raising or spending a dime. This year, the justices and their opposition spent more than $1 million combined for television ads alone. In the end, all three justices were reelected, albeit by much smaller margins than history would have predicted.

The sudden infusion of cash in the Tennessee race can be traced to a new political strategy targeting statewide judicial posts. The thinking is that it is far less expensive to influence state high court elections compared to other statewide offices such as those held by senators, governors, etc. Unfortunately, blurring the lines between law and politics is not a good thing for our system of justice.

Unlike elected politicians, judges are not supposed to be swayed by public opinion or political pressure. They do not represent specific constituencies, such as geographical regions or political parties or ideologies. They are equally beholden to every citizen and should not represent the interests of any of them over the others.

Judges are not to decide cases based on how they feel about particular litigants (antipathy for large corporations or certain religions, for example). They are supposed to follow, in good faith, the law regardless of where that outcome leads them. They are the ultimate arbiters and sit in the one place in American democracy where every citizen is entitled to feel that they can state their case and get a fair and impartial hearing.

In that context, a blitzkrieg of political advertisements not only does a very poor job of picking the best impartial legal minds, it also suggest to the very public it is supposed to serve that the courts are just one more example of a system rigged in favor of those with money or influence.

In the times and places where America is at its best, our judges are wisely selected and they, in turn, issue wise and impartial decisions without factoring in the ability to raise money or explain their reasoning in a 30-second TV ad. Let’s hope we don’t lose that.

Posted: 8/28/2014 2:11:30 PM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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