TBA Law Blog

Posted by: Julie Swearingen on Sep 27, 2008

Journal Issue Date: Oct 2008

Journal Name: October 2008 - Vol. 44, No. 10

This Retiring Chief Justice Didn't Make a Stand-up Comic, but the Judicial Gig Has Been Good, Too

Mickey Barker wanted to be lots of things as a young man " a career army officer, a high school English teacher, a politician, even a stand-up comic " but it never once entered his mind that he might one day become an attorney or a judge, let alone chief justice of the Tennessee Supreme Court.

Nevertheless, Chief Justice William M. (Mickey) Barker retires this year after 25 years of distinguished judicial service.

"It has been a great honor to serve the first 12 years as a circuit judge in Chattanooga, followed by three years on the Court of Criminal Appeals, and the last 10 as a member of our State Supreme Court," Barker wrote in his resignation letter to Gov. Phil Bredesen. "It has been my highest professional honor to have been chosen by my colleagues to serve as chief justice these past three years."

Quite a career ... one that surprises him still today when he thinks about his beginnings. "We had never had a lawyer in the family," he says. "In fact, nobody in my family had ever graduated from college. My mother and father had been to what was then called the Middle Tennessee State Teachers College. They attended for two years, and then the depression just got so bad that they had to quit and go to work. They were the only ones in their families who ever got to college at all, and my brother and I were the first ones to get degrees."

Barker's older brother earned a law degree from the University of Cincinnati and he's the one who convinced Justice Barker to give law school a try.

Barker was not afraid of the challenge. Financially, times were difficult for his parents " a bus driver and a stay-at-home mom " so he began working early in life, sacking groceries at age 12 for a grocery store about a block from the family's house. He worked from 8 a.m. to 8 p.m. every Saturday for four dollars a week. Later on, as a 14-year-old, he earned $26 a week in the summertime sacking groceries Monday through Saturday.

In high school, a friend got him a job selling clothes at a local Chattanooga clothing store called the Boys & Young Men's shop where he earned $40 a week during the summer months and $12 on Saturdays during school. "That was big money to me then. Big money," he laughs.

Barker worked at the clothing store throughout high school and as he began college at the University of Chattanooga. Fate smiled on the young clothier in the summer of 1962 when he got a call from his uncle, Keith Hampton, who had been an early supporter of Gov. Frank Clement and was state Commissioner of Personnel at the time.

"In 1962, Frank was running for governor again, and my uncle calls and says to me, 'What are you gonna be doing this summer?' and I said, 'Well, I guess I'll be down at the Boys' Shop selling clothes.'

"He said, 'Well, how would you like to be the youth director for the third congressional district for the Frank Clement for Governor campaign?' I said, "I don't know anything about any of that stuff.'

"He said, 'All you gotta do is just get your buddies to go around and put bumper stickers on cars and wear campaign hats and show up for rallies and stuff like that. I said, 'I can do that,' and he said, 'What if we pay you $125 a week to do it?' I said, 'Come again?' Barker recalls with laughter. "I said, 'I'm in!' So, I go down to Jay Silverstein who owned the clothing store and said 'Can I take a leave of absence this summer? I got a chance to make some big money!' And that was my first experience with politics."

Back in school at the University of Chattanooga, while studying for a degree in English and secondary education, he met his future wife, Cathy. "I met my wife in an English class. Romantic Literature ... Shelley and Keats and Byron," he says with a grin.

But Barker also had another love and as his undergraduate career drew to a close, he was still trying to decide whether to become a high school English teacher or a career Army officer.

"I loved all things military," he says. "I wasn't good in math or science, I couldn't stand the sight of blood. I was good at English and history and all the liberal arts, which didn't qualify me for a lot of things," he jokes. Back then, teachers in Hamilton County started out making $4,800 per year. "Even then, that was terrible pay," Barker says.

The Army paid about $7,000 annually, so he made up his mind to enter the Army. But the new Mrs. Barker "wasn't too keen on the idea of being married to a career Army officer, and there was something called Vietnam that was beginning to be talked about at the time, too," he says.

His older brother, already a law student on a full scholarship at the University of Cincinnati, urged Barker to delay his army service and join him in law school. His wife liked the idea, too, and so he applied for and received the same full scholarship his brother had received. "And from day one," Barker says, "from my first day of class, I thought, 'This is what I am meant to do.' I loved it."

Money was still tight for the Barker family in those days, and he and Cathy worked hard to get their degrees. "I should have graduated from undergraduate school in 1963," Barker says, "but the money ran out and I dropped out and sold clothes for one full year, saved every dime I made, went back to college, and met my wife in the fall of '63. We graduated from college in the spring of '64 and got married in August. We took a three-day honeymoon in the Smoky Mountains that a lawyer-friend of mine paid for, and then we got in our 1962 Chevy Nova and loaded it up with everything we had and drove to Cincinnati."

Mrs. Barker took a job as an assistant librarian at the law school while he attended classes during the day. "We lived in a third-floor walkup " $95 a month, furnished. She was making $300 a month at the law school. Our food budget was $10 a week. And we actually made it on that. You know, gas was like 24 cents a gallon. Those were great times."

Mrs. Barker also went to school at night and got her masters degree in English. "She's good. Without her, I wouldn't be worth the powder it'd take to blow me up," he laughs.

Upon graduation from law school Barker joined the U.S. Army as planned and served two years as a captain in the Medical Service Corps. He came home to begin practicing law with a small partnership in Chattanooga known as Dietzen, Dietzen & Barker.

"It was two brothers, me and another guy or two. We never had more than five members in the firm and I kinda enjoyed that. There are not too many of those small practices left. It's not economically as rewarding as it is in a large firm. But we loved it because we all got along extremely well. We were like brothers. If we wanted to buy a new desk we all made the decision. People might say that's not a good way to do business, but we liked it. It worked for us."

Barker did personal injury work, "more divorce work than I wanted," a little criminal defense " any kind of case that would get him in the courtroom.

"I loved litigation better than anything," he says. "I like competition, and I love to try to compete to win. And see, I always thought I'd like to be a stand-up comedian. This is true. I actually did some stand-up comedy in the early '70s at a place down in Toomsboro, Georgia, called the Swampland Opry," he says with a flourish.

"And then, I've been in several plays, too. I just ... I just like the limelight. There's no sense denying it," he says good-naturedly.

"I like the competition. I like the limelight," he says, as he leans forward with a big smile on his face and ticks the items off on his fingers. "And then if you can throw in something interesting like the law, that helps."

Barker was in private practice until his 1983 appointment to the Circuit Court for the 11th Judicial District. He was elected to the position in 1984 and again in 1990. During his trial court tenure, Barker was consistently given the highest rating for a Circuit Court judge in Chattanooga Bar Association polls.

In 1995, Gov. Don Sundquist appointed Barker to the state Court of Criminal Appeals. The following year, he was elected to an eight-year term. Barker was appointed to the Tennessee Supreme Court in 1998 and was elected to a full eight-year term the same year and again in 2006. His colleagues on the court unanimously elected him chief justice in 2005.

Barker gleefully tells the story of his appointment to the Circuit Court and his first impression of a man who would eventually become a colleague on the Supreme Court.

Before his appointment to the Circuit Court was announced publicly, he was interviewed by Gov. Lamar Alexander, who told Barker he was getting the appointment but asked him not to say anything about it yet to anyone but his wife. The governor wanted his office to have time to contact the candidates who had not been chosen and let them know before the public announcement, as a courtesy.

"So I go home, and the governor's office starts calling all the losers, and the losers start telling everybody: 'Well, Barker got the job, I didn't.' So, I'm sitting at home about two days later and the phone rings and it's this character I'd never heard of and he says, 'This is Bill Koch. I'm counsel to the governor. We understand that everybody in Chattanooga apparently knows that you're supposed to get this job.'

I said, 'Well, that may be so.' He said, 'Well, the governor wants you to know that you have not been officially picked yet. You understand what I'm saying?' I said, 'Mr. Koch, look, I haven't said a thing to anybody but my wife. These other people, they're the ones who have told it all.' And he said, 'All I'm saying is, the governor has not yet made it official. Do you understand?'

So I said, 'Well, let me tell you something. I'll pack up my family this afternoon and take off for Florida for a week.' And he said, 'That might be wise.' And I said 'Well, thank you very much.'

"So, Bill Koch and I did not get off to a good start," Barker says.

At Koch's swearing-in to the Tennessee Supreme Court last year, the room packed with Koch's family and friends as well as the governor, Barker told this story. Then, ever the comedian, he looked over at Koch and said, "Now, before you're sworn in, you just need to understand one thing. The governor hasn't made your appointment final yet."

In terms of politics, Barker says people describe him as a conservative but points out that he has always made sure that at least one of his two law clerks has a very liberal point of view. He likes for his law clerks to argue with him because he thinks it leads to a healthy and thorough discussion of the issue at hand. "Of course, we have an understanding that when all is said and done, I'm the one being paid to judge and I have to be the tie-breaker."

Barker is a strong proponent of the Tennessee Plan for selection of judges. "Those people who say it's a bad method are just really wrong," he says. "If we just went back to partisan political contests, the first thing you'd see is huge sums of money being dumped in by... by trial lawyers...by, believe it or not, manufacturers associations...by the United States Chamber of Commerce. They're all trying to get judges elected that they think will be favorable to their point of view. That's what we're seeing in other states, like up in Michigan right now, and Wisconsin last year and in Alabama a few years ago. They spent $13 million dollars down in Alabama between two candidates. I mean that's just wild."

Under the Tennessee Plan, applicants to replace Justice Barker on the Supreme Court will be reviewed by a 17-member Judicial Selection Commission. The commission will recommend three candidates to the governor, who will choose the replacement. [At press time, the governor had not chosen the new justice.]

Barker's resignation leaves the chief justice position open, too, and his successor was sworn in during a Sept. 2 ceremony. On that date, Justice Janice M. Holder, of Memphis, became the first female chief justice in Tennessee history. [See second cover story]

In his letter to Bredesen, Barker said he has seen countless positive changes in both substantive and procedural laws while serving as a judge. "I am pleased to report that the state of the judiciary in Tennessee is excellent," he wrote.

Upon his retirement, Barker plans to continue doing church mission work in Central Europe, do some traveling and participate in civic projects. He also plans on spending more time with his family, which includes a son, John, who is a vice president at J.P. Morgan in New York; a son, David, who is an OB/GYN in Chattanooga; and a daughter, Martha, a former school teacher who is now a stay-at-home mom in Chattanooga. Barker has seven grandchildren, five of whom, he says with obvious pleasure, live within a mile of him.

As he leaves office, Barker says his "big push" will be to ensure that all people in this state have access to justice, something for which the Supreme Court has been developing a strategic plan.

"If you really believe in the rule of the law and you really believe that everybody is entitled to equal justice, then you need to step up to the plate," Barker says with tears suddenly appearing in his eyes. "This is something I get emotional about, because it really is important. ... This may come as a shock, but I want to encourage every lawyer in this state to devote 50 hours a year to helping people who don't have the money to hire lawyers.

"We've got almost 6 million people in this state, and about 785,000 are below the poverty line, which means that they can't afford to hire lawyers in civil cases. With lawyers charging from 200 to 400 dollars an hour ... well, average people just can't pay that."

Barker says he is committed to doing 50 hours of pro bono work a year during his retirement, through Legal Services of East Tennessee.

Gov. Bredesen has praised Barker's work on the court, saying, "In a judicial career spanning over 25 years, Chief Justice Barker has served the state of Tennessee with honor and integrity. Tennessee is fortunate to have benefited from his long commitment to public service. While I regret that he is retiring from the Supreme Court, I wish him all the best as he begins this new chapter in his life."

JULIE SWEARINGEN is a freelance writer in Springfield, Tenn., and a former director of communications of the Tennessee Bar Association.