While most of the attention in yesterday's election in Tennessee focused on congressional primaries, arguably the most interesting race in the Volunteer State had to do with its state Supreme Court.
As Dahlia Lithwick recently explained
, three justices on the Tennessee Supreme Court were targeted with a fierce right-wing campaign, not because of any specific case or ruling, but because Ron Ramsey, Tennessee's far-right lieutenant governor and Speaker of the state Senate, decided they have to go "chiefly for the judicial outrage of having been appointed to the high court by a Democrat."
During his two terms, Gov. Phil Bredesen (D) appointed justices to the state's high court, including Cornelia Clark, Sharon Lee, and Gary Wade. Under Tennessee's system, it's up to voters to decide whether to retain Supreme Court justices, and many on the right said these jurists had to go -- if a Democrat liked them, the argument went, they must be bad.
In a major defeat for Lt. Gov. Ron Ramsey, voters on Thursday voted to keep all three Tennessee Supreme Court justices in retention elections. Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee all survived to win new eight-year terms on the state's highest court, maintaining a margin of about 57 percent to 43 percent. While the justices were able to overcome a vigorous opposition campaign by Ramsey and others, who accused them of being "liberal," "soft on crime" and of helping Obamacare, their retention victories were by some of the smallest margins in recent history.
Ramsey's political action committee invested hundreds of thousands of dollars in the hopes of ending these justices' careers. What's more, he recruited the Koch brothers' Americans for Prosperity to intervene, too.
But while conservatives obviously lost this round, the larger question remains: is justice served by the existence of these expensive fights over judicial seats?
Indeed, as the report in the Tennessean noted
, the right spent nearly a half-million dollars to defeat these Supreme Court justices, but the justices and their allies actually outspent conservatives by roughly $100,000.
It's not as if the jurists simply counted on the Tennessee electorate to be responsible and see through the far-right attack operation. For that matter, it's not as if the justices were reluctant to raise money to keep their jobs.
On the contrary, this became a traditional political campaign, complete with sitting state Supreme Court justices raising money and lawyers who may have business before the court making contributions. That the process helped politicize an independent judiciary was unfortunate, but apparently inevitable under the circumstances.
Smearing judges who can't, or won't, smear back is politics pure and simple. The problem for the justice system is that the only solution to a bad guy with a well-financed attack campaign is to construct a good guy with a well-financed ad campaign. After all, the enduring lesson of the Iowa Supreme Court meltdown of 2010 is that dignified silence doesn't win elections. And so the Tennessee Bar Association is, in an admirably bipartisan fashion, getting itself organized to finance and promote a counterinitiative to keep the judicial seats as judiciously as possible. That this is bipartisan is good. That it is happening at all (lawyers raising money for the judges before whom they will appear) is a disaster. [...] When judicial races turn into spending races, what suffers most is not Democrats or Republicans, but judicial independence and integrity. As has been exhaustively chronicled by one nonpartisan study after another, judges don't want to be dialing for dollars from the attorneys who litigate before them, and litigants don't want to appear before judges who dial for dollars.
In this case, the fact that Ramsey lost and the justices prevailed is probably good news for the system. But that doesn't negate the fact that there's a problem with the system itself.