Back to School

Retiring Justice Bill Koch talks about judicial elections, bipartisanship and why he’s excited about being NSL’s dean

Justice William C. Koch Jr. wants to be clear about the timing of his retirement from the Tennessee Supreme Court.  He leaves the court July 15 and the next day will become dean of the Nashville School of Law (NSL) — just weeks before a retention election that would’ve had him on the ballot.

“A lot of folks have asked me whether my decision to accept the NSL job was somehow influenced by what my colleagues are going through now,” he says. His colleagues — Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee — are facing a retention election where the outcome is far from certain.

“The board of trust at the law school started talking with me about the dean’s job over a year and half ago,” Koch says. “The decision had been pretty well finalized last fall and was not influenced by my concern about running. I was fully ready to run — in some ways I would’ve liked to have taken a swing at it. In totality, I’m glad I’m not.

The tenor of the discussion has become mean-spirited and not focusing on the issues.”

Had he not chosen to leave and had he been retained, he points out that he would have become chief justice this fall.

He says he is “saddened that the judicial races are being politicized to the extent that they are. All of us judges should be accountable for our record, about our decisions. The public has a right to know how we do our job. But the idea that some people would want to use a lot of out-of-state money to buy a court that thinks like them worries me. It’s just not a good idea.”

He’s quick to point out he’s not endorsing anybody or commenting on specifics on the day in May when this interview is taking place.

“Under the Code of Judicial Conduct, I cannot today endorse anybody who is running for political office,” he says. “Ask me again on July 16.” Koch’s last day on the court is July 15.

“[If an election] forces appellate judges to raise thousands of dollars, the specter arises that justice can be bought. I know that campaign contributions would not influence my decisions,” he says, “but the public’s trust and confidence in the court is undermined when lawyers and other special interest groups are making contributions.”

Koch says Tennessee has been “an island in a sea of politicized judicial races” and says he’s “sorry we’ve lost that status. We’re now fighting a battle over personalities rather than issues.”

He ran statewide in 1984, 1990, 1998, 2006 and 2008, and says he’s “never asked anyone for a dollar. I’ve never spent a dollar. I’ve been evaluated by an evaluation committee set up by the legislature four times. What I’ve been doing up here is an open book.” He acknowledges that he doesn’t have  “an entitlement to the job,” but is confident “people would say ‘we may not agree with him all the time but we think he’s calling the balls and strikes as best he knows how.’”

“I am gratified,” he says, “that people are not concerned that my decisions go to the highest bidder. They don’t.”

About the proposed Constitutional Amendment on the November ballot, Koch says it’s ironic and unnecessary. “The irony is that the legislature has the authority right now to prescribe any method of electing judges it wants to use. The Constitutional Amendment is actually going to take authority away from the legislature that it now has,” he says. “Quite frankly I find it curious. We’ve had this incessant drumbeat, from John Jay Hooker and others, that there’s something wrong with the system, but the courts have said three times [that merit selection is constitutional].  The question has been fully, fairly, and finally decided. The desire to change the Constitution to make it plainer that merit selection is permitted will at least end that debate. To that extent I support it.”

He takes a breath. “I support it knowing it’s constitutionally unnecessary.”

Aloha Hawaii, Aloha Nashville

Koch was born and grew up in Hawaii, going to a boarding school — there were 43 in his graduating class — on the Big Island where most of the teachers were from Northeast.

“Most [of my classmates] went east to school because our parents wanted us to wear shoes and eat with knives and forks,” he smiles. So off he went to Trinity College in Hartford, Connecticut, where the winters were a bit different than what he was used to. His mother bought him two wool sweaters thinking that would be enough, he recalls with a laugh.

At the beginning of his senior year at Trinity he had completed all the requirements for his degree already, so for his 4th year, he was able to design curriculum that included reading all of William Faulkner’s novels.

“He describes an interesting place,” Koch says of Faulkner, “so I decided I would go south just to see if it was really as he described.” His family had no connection to the south and no one had been a lawyer, but he decided to apply to law school and “every one of them was south of the Mason-Dixon,” he says. He was accepted into all of them and during that Spring of 1969 he toured the campuses. “There was something about Vanderbilt that seemed like a good fit,” he says. “It had the right vibe.”

His plan was to graduate and go back to Hawaii to practice, clerking for a judge there after his first year in school. During his 2nd year of law school a member of the Vanderbilt law faculty asked him if he’d be interested in a job with the attorney general’s office. So he went to work as an intern for Attorney General David Pack — the first intern the office had ever had — and was paid $2.50 an hour.

“General Pack never asked about grades or if I was Republican or Democrat,” Koch says.

Near the end of law school he got an offer for a federal clerkship in Parkersburg, West Virginia. There wasn’t an available clerkship at home in Hawaii, he says, although that was his first choice. He determined to go to West Virginia for the short-term, and then move back home. But two months before graduation, that judge died, so Koch suddenly had no job.

“General Pack threw me a lifeline and said ‘You can come work for me,’” Koch says. He took it, thinking he would do that a couple of years and then move back to Hawaii.

“I never did find my way home,” he says. “But after 45 years, Nashville is home now.”

Thrown in the Deep End

Clerking in the attorney general’s office turned into being assistant attorney general, then deputy attorney general, and before he knew it he had worked for five different attorneys general. His time in that office had a steep learning curve — and he recommends that course for lawyers just starting out.

“I was doing real law from the day I was licensed,” he says, and was working on cases that were “much more interesting and complex than some young lawyers get to do.”

He believes the attorney general’s office is the best place for a young lawyer to learn how to be a lawyer. “I was thrown in the deep end of the pool the day I took my oath.” With only 16 lawyers in the office at the time, he says he had the opportunity to do “a little bit of everything. The workload was sufficiently high that we had our own cases right off the bat. We didn’t second-chair.” Within three months after passing the bar he was before the U.S. Court of Appeals for the 6th Circuit.

“The responsibility is significant. One way young lawyers learn is just doing it,” he says. “Learning from mistakes, watching how other lawyers work, picking up some good points and seeing what doesn’t work.”

Opposing counsel in several of the cases he tried during that time was a lawyer named Lamar Alexander, who worked at Dearborn & Ewing in the years before he ran for governor and won. After that campaign, Koch “got a call that the governor-elect wanted to talk to me.” This baffled him since he had not done any campaigning for Alexander or even had a yard sign. But Alexander remembered the young deputy attorney general and offered him a job as his legal advisor.

“Practicing law opens up doors you couldn’t imagine,” Koch says. “That was serendipitous. But that’s how my relationship with him started.”

It was Thanksgiving 1978 when Koch agreed to take the job. He would begin in January, and in the interim, Attorney General Bill Leech had decided that Koch would serve as the office’s liaison to the Alexander Administration during the transition.

“I was to help brief them on legal issues in state government that they would need to know about,” Koch says. “I had a foot in both worlds.”

In this new world, it wasn’t long before he would encounter yet another steep learning curve.

His Part of the Coup

January 1979 in Tennessee politics was like a House of Mirrors, with Democratic Gov. Ray Blanton about to leave office after Lamar Alexander had won the election, defeating Democrat Jake Butcher.  In his waning days of power, the Blanton Administration was accused of selling pardons to criminals who could then get out of prison. The short version of what happened next is that responsible people of both parties realized there was potential for Blanton to release as many prisoners as he could before leaving office — and these people joined together in a bipartisan effort to stop Blanton by swearing-in Alexander three days earlier than scheduled.  [For a detailed account of this event and what led up to it, read Keel Hunt’s book, Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal.]

Koch sums up his role in the historic transition between the Blanton and Alexander administrations this way: “I was in the right place at the right time.”

When the issue about the pardons came to light, Bill Leech asked Hayes Cooney and Koch “to be his backstops on all that,” Koch recalls. “That turned out to be helpful — although Leech and Lamar knew each other, they were not close friends. It was helpful that I was going to work for Alexander; it raised their comfort level a little bit.”

“As a lawyer I’ve always thought that my job was to advise the officials and let them make the decisions,” Koch says. “I stayed in the background. You have a pretty intimate opportunity to watch public officials.” And what he saw made a big impression on him.

“What I took away from that experience was that we had had a Democratic-controlled legislature; a Democratic governor who was going to be ushered out of office; we had Democratic constitutional officers, a Democratic attorney general; and U.S. Attorney Hal Hardin, who was a rising star in the Democratic Party — all united to swear in a Republican governor early.”

Then-Speaker of the House Ned McWherter later said that one reason that was able to happen was because “we’re all Tennessean’s first.” Koch says “that’s what I’ll carry with me for the rest of my life. The idea that politics are important, but when you strip it away, we’re all Tennesseans — they did what they had to do.

“We were lucky that nothing went wrong that afternoon,” he says. “That event really stands as a monument to a bipartisan group of political leaders understanding that at the end of the day we’re all Tennesseans first.”

Koch believes that the difficult start to Alexander’s tenure helped state government operate more smoothly in the long run. “There was a level of trust between Gov. Alexander and Speaker McWherter and Lt. Gov. Wilder throughout the next eight years that I don’t think would’ve existed had they not gone through that. That was to the state’s benefit. They trusted each other. They were tested at the same time in a politically volatile event.”

But that was a long time ago. Koch says he does not believe that could happen given similar circumstances today. He clarifies that technically it couldn’t happen now anyway because the law has been changed “closing the loophole” that enabled them to swear Alexander in early.

“Assuming the loophole was still there though, I don’t see the trust and confidence among government officials that would allow that to happen today,” he says. “I don’t see the good will or the desire to be statesmen.  Maybe I don’t have a good view from here — but I don’t see it. I’d like to see it. I hope we can move back in that direction.”

He says this while sitting in his office in the Tennessee Supreme Court Building in Nashville, a place he has worked for 30 years, first as a judge on the Court of Appeals before being appointed to the Supreme Court. It is the same building where Alexander was sworn-in under cover of darkness with Gov. Ray Blanton at his new home unaware his power was being stripped from him.

That night is crystal clear to Koch not only because of this scene set into history for Tennesseans but because it is the night he met Debby Patterson, who worked for Governor-elect Alexander as his campaign’s press secretary. They were both part of the nervous group of people who had gathered in then-Chief Justice Joe Henry’s office (“at the other end of this hall,” Koch notes from his current Supreme Court office) before going down into the court’s chamber to carry out the unprecedented political maneuver.

After Alexander was in office, Koch became Commissioner of Personnel, so he would attend daily staff meetings and there he would run into Debby.

“My job was to say you can’t say that, doing the lawyer thing, being very guarded,” he says. “Her position was we are going to say something. From 1979 to 1985 when we got married, much of our time in the governor’s office was coming from different sides of the conversation.”

Watching her work he admits he learned a great deal from her but says, “I met her buttin’ heads.”

Family Bipartisanship

After a successful career in the private sector and her own retirement, Debby Koch went back to work for Democratic Gov. Phil Bredesen with the “Cover Tennessee” health programs. And now she works for Gov. Bill Haslam’s Administration, doing benefits work for people covered by state insurance.

Bipartisanship seems to run in the family — although Bill Koch started with the Republican Alexander and was appointed by him to the Court of Appeals in 1984, it was Bredesen who appointed Koch to the Supreme Court in 2007.

Koch gives this account of the day he was appointed to the high court: He was one of three in the running for the Supreme Court seat and had been instructed to wait for a phone call, so he was in his office when Bredesen called to offer him the job. But the governor told Koch he couldn’t tell anyone about it for the next two hours because the other two candidates had to be notified. The other two, it turned out, were at the Sheraton at the Tennessee Bar Association convention after they were notified. They soon realized that since neither one of them got the spot, Koch must have.

“I received a cell phone call from the convention,” Koch says. His friend tells him, “The talk is that you got it. The two who didn’t get it are here.” His friend continues: “I want you to know what I just heard. Two lawyers were talking about it over at the coffee pot. One said, ‘I can’t believe that Bredesen appointed that damn Republican.’ The other one said ‘Well, he’s not much of a Republican.’”

Koch gets a kick out of this.

So, is he a Republican or not?

“I’ve never been directly asked,” he laughs. “But I’m a cradle Republican. If I had to put a finer point on it, I’m a Howard-Baker-Lamar-Alexander Republican.”

He says bipartisanship is “getting more unusual. But it’s not uncommon for persons of different political parties to know and like and even trust each other. The way Tennessee got ahead was for Republicans and Democrats to put down the partisan rhetoric to work things out.”

‘Transition’

At 66, Bill Koch’s boyish grin doesn’t look like it belongs to someone who would be retiring. But that’s what he’s doing — it’s the only way to leave the job, he points out — and he sees it as a “transition.” He is clearly excited about his new role at the Nashville School of Law, but he’s sentimental, too. He picks up a piece of old carpet that was taken up during a building renovation, “where lawyers used to stand arguing in the court.” He’s thinking about framing it. An avid photographer, he says he has taken probably 3,000 pictures of the historic building, including focusing on details like the vintage doorknobs and water fountains.

He began coming to the building in 1971 when the Attorney General’s Office was on the second floor, and “with a brief hiatus working at the Capitol, I have spent my professional career here,” he says. “My car and my brain are programmed to drive to the Supreme Court.” (His car did not go there for two summers in the mid-1990s when he earned his LLM in Judicial Process from the University of Virginia School of Law.)

“I love this building as a place,” he says. “And I’ll miss the people that are in it.” One person he won’t miss, however, is Susan Dulin, his executive assistant. She is leaving state government after 38 years — 36 of them working with Koch, beginning in the Attorney General’s Office — to come with him to NSL as assistant to the dean.

“I have an enormous amount of respect for Justice Koch and cannot imagine working for or with anyone else,” Dulin says. “His love of the law, his work ethic, his attention to detail and his passion for teaching has already benefitted so many and will continue once he becomes dean of the school in July.”

Koch says he feels fortunate to have “been allowed to do this for 30 years, but I’m looking forward to seeing how other folks will do it. What I’m doing [at NSL] is important enough that I know I won’t be sitting down regretting what I’ve left behind.”

What He Does for Fun

Bill Koch is no stranger to the Nashville School of Law or legal education — he has been teaching Constitutional Law there for nearly 18 years. Since classes are at night, he says he prepared on weekends.

“Some people play golf on weekends. I read U.S. Supreme Court decisions,” he says. He has also taught a comparative state constitutional law course at Vanderbilt, and at Belmont he taught a “skills-oriented, client-interviewing negotiation mediation course.”

When he’s not working he enjoys traveling, gardening and reading.

“I have a lot of fun reading Supreme Court opinions and academic articles about what the U.S. Supreme Court is up to. That’s an interesting puzzle to me.”

He also spends time with the American Inns of Court, an organization where judges, lawyers, students and professors have the primary focus of promoting civility, collegiality, professionalism and excellence in the practice of law. Today there are about 350 local Inns around the country and eight in Tennessee. Justice Riley Anderson started the first one in the state about 26 years ago, Koch says, and Koch helped to start the second, the Harry Phillips American Inn in Nashville, 25 years ago.

Calling it the “most significant extracurricular activity” he engages in, “other than teaching,” he estimates about 850 Tennesseans who are members of an Inn. Nationally, he has been elected as 6th Circuit representative to the Inns of Court Board of Trustees and recently was elected vice president of the American Inns of Court.

Plans for NSL

One factor in his decision to retire was his past. He says he watched his parents retire “from lives of great activity to lives of very little activity and I saw that aging process, especially in my father, take its toll.”

This helped him realize he had more he wanted to do. “I’m certainly not ready to stop working. It’s just a matter of what’s the best use of my time in the time I have left.”

After talking with the NSL board, he realized that “the absolute best thing I can do is to help law students get started on the right track in the practice of law. I can’t think of anything more challenging, rewarding or beneficial.”

Koch will begin work at the school July 16, but it’s not the transition he or others had anticipated. With the untimely death of Judge Joseph C. Loser Jr., who had been dean for nearly 28 years and who was on the cusp of retirement, it is bittersweet.

Koch has plans for the school, yes, but realizes that any changes will need to be supported by various groups.

“For the school to grow, there needs to be buy-in by staff, faculty, students and alumni,” he says. “My first plan is to find out the aspirations of those groups. I will also seek outside consultants to evaluate the curriculum to make sure we’re teaching the right courses with the right weight and emphasis.”

He explains that deans from two Tennessee law schools — Doug Blaze of the University of Tennessee College of Law and Kent Syverud, former dean at Vanderbilt Law School — have certified at NSL’s request that the curriculum at NSL is comparable to an accredited law school’s.

“It’s important to maintain and improve that if we can — because the students who come to NSL make a lot of sacrifices — juggling jobs, home life and going to school at night. My mission is going to be to give them the best possible legal education so they can professionally and effectively represent their clients.”

“If we change it will be because that’s where the faculty and students want to go.”

He envisions that NSL will become a community resource, not just for Nashville, but also for Middle Tennessee, the entire state and perhaps even surrounding states.

“I would like NSL to be viewed by lawyers and judges as a place where they can come learn about new developments in the law and to sharpen their legal skills,” he says. “The school can also be a place where the public can come to broaden their understanding of the legal system and the courts.”

On this spring day of the interview, Koch is comfortable standing in NSL’s library, laughing and speaking to the occasional student who walks through.

“I’m proud of my judicial career, but I’m not going to hang onto it,” he says like a man who is satisfied with what he’s done and where he’s headed.

“It’s time to move on.”


Suzanne Craig Robertson is editor of the Tennessee Bar Journal.