Three of Tennessee’s five Supreme Court justices were elected to serve another term on Thursday, surviving an expensive campaign that advocates for judicial independence say is part of a worrying trend that could distort the process.
Chief Justice Gary Wade and Justice Sharon Gail Lee won with 57 percent of the vote. Justice Cornelia Clark won with 56 percent of the vote. Roughly 850,000 voters weighed in on the retention of each justice.
More than $1.4 million had been spent on television advertising in the campaign to unseat the justices, according to a review of filings by two nonpartisan groups that promote a democratic judiciary. The largest share spent came from money raised by the justices themselves, while the anti-retention campaign was fueled in large part by money from a political action committee formed by Lt. Gov. Ron Ramsey (R) and national groups. The ads against the justices attacked them as being too liberal, soft on crime and pro-Obamacare. Unseating even one of the justices could have shifted the balance of the court, which appoints the state’s attorney general.
“The amount spent attempting to influence this retention election is deeply troubling,” said Alicia Bannon, counsel at the Brennan Center for Justice, which reviewed the filing data along with Justice at Stake. “Arms race spending has no place in a supreme court election. Tennesseans shouldn’t have to worry about outside groups playing politics with their courts every time there is an election.”
In a Facebook post, Ramsey congratulated the justices, describing their victory as “hard fought.”
“For the first time in decades, we had a real election for the Supreme Court,” he said. “Our Supreme Court justices traveled the state of Tennessee this summer meeting Tennesseans and learning things about our state that you can’t find in any law book. Because of that, more Tennesseans than ever know the names of our Supreme Court justices and are aware they have a role in deciding who sits on the high court. No matter how you look at it. That is the true victory, not just for this effort, but for the state of Tennessee.”
The justices, appointed by former governor Phil Bredesen (D), spent nearly $580,000 in joint ads defending themselves. Another $215,000 was spent by Tennesseans for Fair Courts, a group formed by a local attorney, and Chief Justice Gary Wade spent about $95,000 on ads, as well. The campaign against the justices was led by The Tennessee Forum — a group funded by Ramsey’s PAC — which spent nearly $475,000 on TV ads. The State Government Leadership Foundation, a national partner of the Republican State Leadership Committee, spent nearly $64,000, while Americans for Prosperity spent undisclosed amounts.
In May, North Carolina Justice Robin Hudson survived a primary challenge in which 90 percent of the more than $1.3 million in advertising spending funded ads against her. Toward the end of that campaign, Justice for All North Carolina had reported $900,000 in out-of-state contributions from the RSLC, according to Justice at Stake and the Brennan Center. TV ad spending for an open state Supreme Court seat in Arkansas earlier this year was nearly double 2012 levels.
Advocates for an impartial judiciary worry that increased spending in what have traditionally been quiet campaigns can distort the judicial process. Since 2000, the Brennan Center, Justice at Stake and the National Institute on Money in State Politics have issued annual reports on judicial campaign spending. In their October report, they reported $33.7 million in television ad spending on Supreme Court races in the 2011 to 2012 cycle, well above any of the cycles since the first report. Thirty-eight states hold Supreme Court elections, according to the report.
“Tennessee’s being put on notice that their courts, like those of many other states, are now officially in the crosshairs of groups who view courts as one more investment,” Justice at Stake executive director Bert Brandenburg told The Washington Post earlier this week.
But advocates are worried for reasons beyond the fact that outside groups may be gaining influence on such elections. Advertisements against sitting judges often focus on rulings in criminal cases, where it is easy to portray nuanced decisions as being too soft on crime. The fear of such soundbite-friendly negative ads risks influencing decision-making, they say. Indeed, in an October report, the liberal Center for American Progress found that as election spending rises judges appear to be more likely to rule against criminal defendants, perhaps to avoid that “soft on crime” image.
After a review of 2,345 business-related rulings and more than 175,000 contribution records in every state, Emory University law professor Joanna Shepherd last fall reported finding a statistically significant relationship between campaign contributions from business groups and pro-business rulings. The more they spent, the more likely the courts ruled in their favor. She did not, however, find a statistically significant relationship in retention elections, such as the one in Tennessee, which was instituted 20 years ago by lawmakers seeking to move away from partisan campaigns.
“The goal of the new method is to take politics out of the process of choosing high court judges,” The Commercial Appeal reported just days ahead of the 1994 passage of the Tennessee law that created the current system by which justices are first appointed by the governor and then face retention elections every eight years.
In 2012, Gov. Bill Haslam (R) was sued over the constitutionality of that process. The Supreme Court upheld the system in a May ruling this year, but Haslam and former governor Bredesen have teamed up to support a November ballot measure that would essentially enshrine the current process in the state’s Constitution. Earlier this year, Haslam noted his concern that the campaign against the justices led by his lieutenant governor could “muddy the waters” for that ballot measure.
The largest margin of victory for the justices running in Thursday’s election was about 15 percentage points. In the 1998 retention election, four of the five justices running won by margins larger than 30 percent.