An estimated 300,000 Tennessee families have been asked to review their level of trust in dozens of appellate court judges, most of whom wouldn’t answer a short series of questions about their judicial philosophy as they seek voter permission to stay in office.
The e-mail campaign was organized by the Family Action Council of Tennessee, in preparation for the judges’ retention vote on the primary ballot on Thursday, Aug. 3.
“These judges are asking for our vote to sit in judgment over us, but they don’t want us to form any judgments about them based on information that we should be able to get,” David Fowler, a 12-year state senator and the council’s chief executive, said in an interview with WorldNetDaily.
For years, the annual judges “retention” vote has come and gone in many states with little reaction from voters. But because of the action of a few judges like those in Massachusetts who discovered a constitutional right to homosexual marriage and those in Tennessee who found a constitutional right to abortion, suddenly the philosophies of those individuals on the bench have become important, Fowler said.
So his group, in conjunction with the state Right to Life political action committee and with assistance from Christian ministry powerhouses American Family Association, the Eagle Forum and Focus on the Family, sent the information packets about the judges via e-mail to lists that crossed the state.
The survey questions were worded carefully and the judges were not asked to take a position on a future case. For example, the judges were asked which former president best represented their political philosophy: Jimmy Carter, Bill Clinton, George H.W. Bush, Ronald Reagan or Gerald Ford. They also were asked whether they agreed with the statement that there is no provision in the Tennessee Constitution requiring the public to pay for abortions.
However, with only a few exceptions, the judges responded with a uniform refusal to answer, Fowler said. One judge simply scrawled the following across the request for information, and returned it:
“Mr. Fowler – Thank you for your interest in an informed vote. For more information about my life and experience, please see deedavidgayforjudge.com.” On that website, however, Gay does quote Ronald Reagan, “If we ever forget that we’re one nation under God, then we will be a nation gone under.”
Fowler said the problem is partly the appointment and retention system. Judges are appointed in most states by a governor or judicial panel, but at the same time many of those state constitutions call for judges to be elected. That’s addressed by having “retention” elections, in which voters are asked only whether a judge should remain on the bench.
And while the U.S. Supreme Court has ruled that judges have a right to speak out on issues of the day, they generally have declined to do so. In fact, the bar association asked Tennessee judges to make a commitment not to answer questions about themselves.
“The bar association basically asked them to retreat from the rights they had and continue under the guise of impartiality,” Fowler said. “It does fit with the view of some judges that if they don’t like the law they’ll either disregard it or change it.”
However, that leaves voters wondering whether a judge seeking another term on the bench will follow the U.S. Constitution and the rule of law, or not, he said.
Fowler said his hope is that the 300,000 packet recipients will share them, and 700,000 or 800,000 voters will be able to review the questions to the judges, and their responses, in time for the election.
About half of the judges surveyed ignored the questions entirely; the other half generally sent letters explaining they didn’t want to answer. Two state Supreme Court justices up for retention votes, Chief Justice William Barker and Justice Janice Holder, wrote letters.
“I agree with you and your organization that judges at all levels should be accountable – indeed, they should be accountable to our constitutions and to the rule of law,” Barker wrote. Then he went on to cite his positions in previous cases regarding the death penalty and abortion. He did note there are some issues likely to come before the court he wouldn’t want to discuss.
Holder, meanwhile, enclosed some biographical information and said her judicial philosophy “can best be determined” by reading her published opinions. “I conclude that I cannot respond directly to the questions contained in your survey,” she wrote.
Fowler said he wanted to distribute the information, even though incomplete, to let people know as much as possible. “We’ve even encouraged some people to call the judges and say, ‘I noticed you didn’t answer the questions on the survey, but as a constituent I’d like to get some information from you.'”
Sunshine is good, he noted, and the more information voters have about all candidates, including those for the judiciary, the better.
“I don’t wish ill on anyone,” Fowler said. But if judges find their retention votes closer than expected, they might “realize that people did want the information.”
The state Right to Life organization is utilizing the information in its specific campaign involving Barker and Holder. They were on opposite sides of the 2000 opinion where the state Supreme Court “found a right to an abortion in our state Constitution.”
“If for example, (Justice) Barker, who dissented in the abortion case, he gets 60 plus percent, and Janice Holder, in the majority, gets 51 or 52 or 53 percent, I think it’ll be a signal that people were paying attention,” Fowler said.
Even some of those within the system agree there needs to be some light shed.
“This is a matter of judicial philosophy that every voter has a right to know about every retention ballot candidate; otherwise the ‘election’ is a farce,” longtime attorney Larry Parrish told WorldNetDaily. “By a compact of silence, every retention ballot candidate respectfully has refused to share his or her judicial philosophy on this important issue. This, to me, is wrong; I know no other way to say it.”
Spokeswoman Karen Burkhardt of Tennessee Right to Life said her group focuses on the issue of life, and in that, is highlighting the two Supreme Court justices who differed on the question of abortion.
“The problem here is that we have had a liberal administration for a number of years, and most of the judicial appointments have gone against the right-to-life movement,” she said.