Update: This post was updated at 11:30 a.m. on Aug. 6 to reflect newer TV ad spending numbers.
Tennesseans on Thursday will decide whether to keep three state Supreme Court justices following a roughly million-dollar ad campaign, a continuation of what advocates describe as a troubling national trend of increasingly politicized judicial campaigns.
Lt. Gov. Ron Ramsey (R) has played an outsized role in the campaign against the three incumbent Democrats, Chief Justice Gary Wade and Justices Cornelia Clark and Sharon Lee. A political action committee he set up, RAAMPAC, contributed $425,000 to anti-retention efforts, according to a Friday review of campaign disclosures by the nonpartisan nonprofit group Justice at Stake. The national Republican State Leadership Committee has also spent nearly $200,000 fighting retention, while Americans for Prosperity and the State Government Leadership Foundation, a partner group of the RSLC, have spent undisclosed amounts. The justices themselves have raised slightly more than $1 million since the start of the year.
“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,” said Justice at Stake Executive Director Bert Brandenburg.
At least $1 million had been spent by both sides on television ad spending, according to the group’s review of FCC filings through Wednesday, Aug. 6. Pro-retention groups spent more than $562,000 and those opposed spent more than $425,000. Since 2000, Justice at Stake along with the nonpartisan Brennan Center for Justice at NYU School of Law and National Institute on Money in State Politics have issued annual reports on spending in judicial elections.
“This is part of a pattern that’s been popping up around the country for a number of years now and 2000 was the year it really exploded,” Brandenburg said.
Ramsey helped to set the tone for the attacks on the justices for being soft on crime and too liberal when he met with business groups in the spring, The Tennessean reports. In a Facebook post last Wednesday, he urged his followers to share and repost the video below, writing “If you want a conservative Tennessee Supreme Court that interprets the law and does not legislate from the bench, please SHARE this video.” Unseating just one of the justices would shift the balance of the court, which is poised to appoint the state’s next attorney general.
In an official report this year, a nine-member judicial evaluation commission recommended retaining all three of the justices based on their integrity, knowledge of the law and service to the profession, among other qualities.
Republican Gov. Bill Haslam has publicly disagreed with the tactics of the anti-retention groups, telling reporters earlier this year that “as judges, you’re restricted in how you can respond to some things, and so I think it’s one of the dangers in having an election about specific issues when judges can’t comment on those issues.” Haslam defended Ramsey’s right to make such arguments, but added “it’s just not something I’m going to be taking part of.”
At the time, Haslam also said he was concerned that the effort to defeat the judges could “muddy the waters” for a constitutional amendment on the ballot this fall, which both he and and former Democratic governor Phil Bredesen support. That amendment would essentially enshrine in the constitution Tennessee’s judicial selection process by which Supreme Court and appellate judges are appointed by the governor, approved by the legislature and then face retention elections thereafter. Ramsey at the time said “nobody pays any attention to” such elections, and the process hands justices a “de-facto lifetime appointment.” Haslam was sued over the process, though the Supreme Court ruled in May that the it is constitutional.
Advocates for an impartial judiciary note that Tennessee is simply the latest state to see increased spending in what were once-quiet campaigns. In North Carolina, for example, spending on a judicial primary election topped a record $1.3 million. In their October report, the Brennan Center, National Institute on Money in State Politics and Justice at Stake found that the $33.7 million in television ad spending on Supreme Court races in the 2011 to 2012 cycle far exceeded the previous two-year record of $26.6 million set in the 2007 and 2008 election, as charted below. Thirty-eight states conduct elections for their Supreme Courts, according to that report.
Some researchers have also voiced concerns that spending in judicial elections can distort what should otherwise be impartial rulings.
In a November study, Emory University law professor Joanna Shepherd reviewed 2,345 business-related state Supreme Court opinions from all 50 states and more than 175,000 contribution records. She found 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. Importantly, however, she did not find a statistically significant relationship in retention elections.
An October report from the liberal Center for American Progress found that as election spending rises judges appear to be more likely to rule against criminal defendants, perhaps in an effort to shed a “soft on crime” image.