The August 7 Judicial Elections Are Legal

A column in today’s Tennessean asked the question, “are August 7 judicial elections legal?” The resounding answer from the courts and lawyers of the Tennessee Bar Association is YES. The branch charged under our constitution with the responsibility for deciding legality -- the courts -- has consistently held the retention elections to be constitutional. Constant attacks on the legitimacy of those decisions undermine the very bedrock of our democracy.

Lawyers think of these questions about the legitimacy of our courts as settled law. Three separate Supreme Courts have found the system in conformity with the Tennessee Constitution. On two occasions, U.S. District Courts have looked at the question and found that the way we elect our appellate court judges is constitutionally sound. Every day we rely on the concept of settled law. Some of those questions are mundane. Can you be fined for running a red light? The settled answer is yes. Was George Bush or Al Gore elected president? Vice President Gore got it right when he said that the U.S. Supreme Court had spoken and the question was settled. Journalists would certainly consider that the standard for libel of public figures, actual malice, is settled.

The column goes on to cite a complaint filed with the Board of Judicial Conduct that the Judicial Performance Evaluation Commission, and particularly the judges on that commission, are not following the law. As has been repeatedly pointed out, the Board is not a super appeals court. It is not charged with the responsibility for deciding the law.

The Board of Judicial Conduct is charged with addressing the conduct and behavior of judges. Should there be a persistent and consistent action by a judge, which is not cured by reprimand or judicial appeal, then and only then should the board of judicial conduct process be invoked.

The lawsuit, about which John Jay Hooker and others base their complaint, is on appeal and will be decided in due course by the courts charged with the responsibility of making those decisions. And while that appeal is pending, the judge in that case has ruled that the Judicial Performance Evaluation Commission’s “findings carry the full effect of the law for which the legislature intended.”

Early voting for these positions has already started. In fact I have already voted. We should let the voters now decide the central question in this judicial election -- whether we will retain or replace our appellate judges. In deciding this critically important issue, voters need to look beyond partisan politics and inform themselves about whether the judges on the ballot are qualified, fair, and impartial. The Judicial Performance Evaluation Commission recommended “retain." Nine out of 10 Tennessee Bar Association members responding recommend “retain.”


Jonathan Steen is President of the Tennessee Bar Association