A fight over who runs the judicial branch of state government is about to break out in the legislature with social conservatives rising up to try to seize control.
Critics of the judiciary cast themselves as good-government reformers. They say they merely want to change the system to start holding the state’s judges more accountable for ethical lapses and other breaches of the public trust.
Judges say their independence and integrity is threatened. They claim their foes are trying to intimidate the judicial branch to produce more conservative rulings on social issues ranging from the death penalty to abortion.
The two sides will clash Sept. 20 and 21 during legislative hearings on the Court of the Judiciary, the secretive state commission that weighs complaints of misconduct against judges and decides whether sanctions are necessary.
Social conservatives want to grab the power to appoint the majority of the commission’s members from the state Supreme Court and put it in the hands of allies in the Republican-run legislature.
This month’s hearings seem aimed at drumming up publicity to help ease the way for the conservatives’ legislation in next year’s session. Appointed by Senate Speaker Ron Ramsey and House Speaker Beth Harwell, the joint committee holding the hearings is stacked with outspoken judicial branch critics. It is co-chaired by Senate Judiciary Committee chair Mae Beavers, R-Mount Juliet, the Tea Party darling who is sponsoring the bill to put the Court of the Judiciary under the legislature’s authority.
“Having observed the Court of the Judiciary for many years, I am more convinced than ever of the need for serious and extensive reform,” Beavers said when her special committee was named. “Tennessee’s judicial branch is just as important as the legislative and the executive. Their decisions, interpretations and opinions have consequences that affect the lives of real people. In order to have a serious judiciary, we must have a serious body overseeing them. The Court of the Judiciary must be beyond reproach. I look forward to leading the effort to make it so.”
A special legislative committee also held hearings last year into the Court of the Judiciary. Those meetings highlighted the failure of the judiciary system to discipline judges for ethics violations. Of the hundreds of annual complaints, 90 percent are dismissed, the committee learned. Proceedings are secret, and nearly all reprimands are not made public. One opponent called it “the Court of the Cozy Judiciary.”
The state Supreme Court now appoints 10 of the Court of the Judiciary’s 16 members. The Tennessee Bar Association names three, and the governor and speakers of the state House and Senate each appoint one member.
Under Beavers’ bill, the commission would drop to 12 members and the House and Senate speakers would appoint all of them. Beavers rammed her bill through her Senate Judiciary Committee last session, but then it stalled in the face of heavy opposition from judges.
“It’s nothing more than an attempt to gain control over a separate branch of government,” said Steve Daniel, a retired judge who presided over the Court of the Judiciary from 1999 to 2004 and served as chief disciplinary counsel from 2007-10. “It’s nothing more than an attempt to gain power over who sits on the court. They want to try to influence the judiciary, to intimidate judges, to make them more palatable to their particular agenda.”
Janice Johnson, a onetime legislative director of the Tennessee Christian Coalition, is leading the charge for what she calls judicial accountability.
“I want the legislature to do their job,” she said. “There are three branches of government, and they’re all supposed to hold each other in check. The way the legislature holds the judiciary in check is they can impeach or remove rogue judges. We haven’t impeached a judge in 53 years.”
Social conservatives complain about the inherent conflict of interest of judges policing themselves under the present system. In a message to supporters, the Tennessee Family Action Council’s David Fowler made that case:
“Maybe few judges ever do anything wrong. But it’s no comfort to know that until recently, the Court’s investigatory attorney actually continued to practice law in front of the judges he was required to investigate. As my daughter would say, “Awkward!” And 10 of the 16 members of the Court are sitting state judges — sort of like the Titans having their coaching staff referee their own games.
Johnson says: “You’ve got foxes appointing foxes to oversee foxes that are raiding the henhouse. That’s exactly the way it’s set up. Judges are appointing judges to oversee judges.”
With the legislature threatening action, the Court of the Judiciary is trying to show that it can reform itself. In its annual report this summer, the court named a new presiding judge and a new disciplinary counsel to prosecute judges accused of misconduct.
In the past year, the court issued nine public reprimands to judges — eight more than the year before. There also were six private reprimands. The public cannot know who these judges are. But for the first time, the court at least gave a summary of the types of misconduct that resulted in their punishment.
“We believe Tennesseans deserve greater transparency about our efforts to investigate complaints against judges, and this new annual report format serves as our first step in that direction,” said the new presiding judge, Chris Craft of Memphis.
Daniel said the secrecy is necessary to protect the reputations of wrongly accused judges.
“A vast majority of these complaints are so baseless that if you published every one of them it would, by the sheer number of bogus complaints, imperil the reputation of those who are being complained against,” he said. “Many of these complaints have no foundation in fact and simply are an effort to embarrass and attack the professional credentials of those who are being accused.”
He called private reprimands “an effort to try to correct the judge’s conduct and yet not embarrass the judge in minor offenses that do not arise to misconduct that deserves a public rebuke.”
Daniel said it’s ridiculous for legislators to assume a watchdog role over the judicial branch when they don’t bother to act against their own unethical behavior.
“What we’ve got is the legislature trying to be involved in judicial ethics when they won’t police their own ethics. That looks like the pot calling the kettle black. Until they get their own house in order, they need not be fooling with something that’s working fairly well. You can quote me on that.”