Retention Elections See Unprecedented Partisanship
The 2014 retention elections of Tennessee Supreme Court Justices Gary Wade, Cornelia Clark, and Sharon Lee were the state’s most expensive and politically hostile judicial races since the New Politics report series began in 2000. In a state where the governor’s office, both U.S. Senate seats, and a supermajority of the state legislature were controlled by Republicans, the 2014 retention elections provided an opportunity to change the ideological composition of the court. Wade, Clark, and Lee were all appointed by a Democratic governor, and their loss in their retention races would have given the sitting Republican governor the opportunity to make new appointments. The loss of any one of their seats would have given the court a majority of Republican appointees.
Tennessee had seen a high-profile retention election once before, in 1996, when Justice Penny White—one of the first female justices on the court—lost her seat after joining a controversial decision overturning a death sentence. Retention elections later receded from the limelight, but the pendulum swung back in 2014, as Republican Lieutenant Governor Ron Ramsey served as the driving force behind a campaign to oust the three Democratically-appointed justices. 1
Anti-retention messaging focused on four central claims—the state Supreme Court was the “most liberal place in Tennessee,” the justices were anti-business, they had “advanced Obamacare,” and they were soft on crime. Significantly, the Tennessee Supreme Court is also the only high court in the nation that appoints the state’s attorney general. In 2006, the court appointed Bob Cooper, a Democrat, to the position. Importantly, the court was due to pick a new attorney general shortly after the 2014 election. Ramsey publicly spoke out in favor of appointing a Republican to the position. 2
Although the lieutenant governor pushed for the ouster of the justices along partisan lines, many Republicans opposed the politicization of the judicial selection process. When asked if he would join the anti-retention efforts, Republican Governor Bill Haslam replied, “[t]hat’s not my role.” 3 He added that he wanted “to let the candidates themselves speak for why they should be retained.” Former state Supreme Court Justice William Koch, who was appointed by a Republican governor (and is of no relation to the Koch Brothers), spoke out against the lieutenant governor’s campaign, saying he was “sorry [Ramsey] want[ed] to inject partisan politics into the court system.” 4
Ramsey’s political action committee, which received substantial donations from corporate and healthcare interests, gave more than $600,000 to the Tennessee Forum. The Forum was the highest non-candidate spender in the state that summer, pumping nearly $790,000 into efforts opposing the justices. These included a mailer that urged voters to “drop the hammer on our liberal Supreme Court,” 5 as well as TV ads asking voters to “replace the liberal Supreme Court.”
In addition, the Washington, D.C.-based RSLC spent nearly $190,000 on mailers and also gave money to the Tennessee Forum. A partner group of the RSLC, the State Government Leadership Foundation, spent an estimated $40,000 on TV ads.
On the other side, there was also an aggressive effort to defend the justices’ seats. A significant portion of the pro-retention dollars came from attorneys, resulting in what one campaign strategist referred to as “a mix of people who care about the issue and who benefit from giving to the justices.” 6 Tennesseans for Fair Courts, largely funded by trial lawyers, spent nearly $350,000 on the election, most of which went toward TV ads defending the justices against the “outrageous extremists” the group claimed were attacking the court.
The justices themselves fought back the hardest, raising a combined $1.2 million, a significant portion of which came from attorneys. This money bankrolled a sizable television ad campaign that highlighted their histories of “upholding nearly 90 percent of death sentences.” And they had bipartisan help. The justices sponsored an advertisement featuring retired Republican Tennessee Supreme Court Justice Mickey Barker, who said he was concerned that “out-of-state special interests” were “trying to take over [the] Supreme Court.”
On August 7, all three justices were retained. But Ramsey had left his mark. Wade, Lee, and Clark received 57 percent, 57 percent, and 56 percent support respectively, compared to the 20 appeals court judges up for retention, who all received over 60 percent support. Likewise, when Lee last faced retention in 2010, she received 68 percent approval; when Wade faced retention in 2008, he received 77 percent approval; and when Clark was up for retention in 2006, she received 74 percent approval.
Shortly thereafter, when Attorney General Cooper’s term ended, the state Supreme Court replaced him with Herbert Slatery III, Governor Haslam’s chief legal counsel, a Republican.
This was not the only fair courts development in Tennessee in 2014. To see how the state’s judicial selection system was affected by the November elections, see the coverage of Tennessee’s Amendment 2 in “Appendix B: Court-Centered Constitutional Amendments in Tennessee, Florida, and Hawaii.”