Nearly a decade ago, Penny White earned an unwelcome distinction in Tennessee legal history.
In 1994, she was appointed by then-Tennessee Gov. Ned Ray McWherter to fill a vacancy on the state Supreme Court—becoming the second woman to ever serve on the court. Two years later, she was removed from office under a newly adopted merit-based system of “retention elections,” which gave Tennessee voters the right to fire justices even if no opponent stood against them.
Before Justice White's defeat, it was all but unheard of to be removed in a retention race. But her experience proved a harbinger.
According to a report published in 2001 in the Loyola of Los Angeles Law Review, the average vote to retain judges for states in the study fell almost fifteen percentage points from 1964 to 1992, and from almost 85% to 69% almost three decades later.
White, who is now on the faculty of the University of Tennessee College of Law, fell afoul of Tennessee voters in 1996 because of her supposed opposition to the death penalty. Opponents focused on her decision to overturn a death sentence for the heinous rape murder of an elderly woman attacked on her way to the doctor. Though White had only ruled on that one capital case, and says she was constitutionally obligated to overturn the sentence, she was removed from the bench by a 10 percent margin, in a 45 to 55 contest.
Only 19 per cent of Tennessee's eligible voters participated in the election.
White remains the only Tennessee justice ever removed from office. She later blamed the movement to remove her, spearheaded by a Nashville newspaper's “Just Say No” campaign, on political maneuvering from a governor who wanted to put one of his supporters in her place.
Her experience has focused renewed attention on the vulnerability of judges across the nation to political and financial pressures.
Two days after White was ousted, Supreme Court Justice John Paul Stevens said popular election of judges raised worrying issues about judicial bias. Calling such elections “profoundly unwise,” he said that if judges were forced to campaign on platforms such as promising to be “tough on crime” or in opposition to the death penalty, it would establish “evidence of bias that should disqualify the candidate from sitting in criminal cases.”
But such conflicts appear almost inevitable under the system now used by many states.
The so-called Tennessee Plan, adopted in 1994, was a typical example. It established a “merit-based” system of voter approval of judges. Under the Plan, judges were selected by a nominating committee, confirmed by the governor and could be voted in or out through a retention election.
An August 2014 report, Choosing Judges: Judicial Nominating Commissions and the Selection of Supreme Court Justices, counted just three states where judicial nominating commissions are used to choose lower court judges, and a handful of states where governors put together advisory panels to help fill judicial vacancies and to offer input on applicants.
Twenty-two states and the District of Columbia selected supreme court justices through a commission-based appointment process. Including states that used judicial nominating committees only in certain circumstances, 30 states and D.C. use a judicial nominating commission in their selection of supreme court judges, according to the report.
Merit-based systems have been altered, curtailed or replaced in some states — including Tennessee, which as of 2014 does not require a commission to recommend judicial candidates and gives the legislature veto power over judicial selections. Still, 15 states held retention elections in 2014.
Now, these sleepiest of sleepy state judicial races, are quickly becoming the new frontier for big spending by political and special interests. Sitting judges have increasingly faced the prospect of losing — not against actual opponents — but against anonymous and well-heeled donors backing nobody.
Some see this as a sign that what was once ostensibly the least politicized part of the judiciary has become a petri dish for the most harmful kinds of political pressures.
“It's concerning because retention elections have often been part of broader reforms to judicial selection systems,” says Alicia Bannon, counsel for the Brennan Center's Democracy Program.
Now, she adds, it's hard to know where those reforms will come from.
While spending in contested judicial races began to climb in the 1990s and exploded after Citizens United, big money only began trickling into retention races when three Supreme Court justices were removed from the bench in Iowa in 2010, after ads slammed them for votes to legalize gay marriage.
Along with another Iowa judge who (unlike the others) was ultimately retained in 2012, they refused to campaign or raise money for their own retention.
According to an article in the Indiana Law Review, three weeks before the 2010 election, one of the Iowa judges, Chief Justice Marsha Ternus gave public comments at Iowa State 40 University that offered some insight into their thinking:
“The American Family Association wants our judges to be servants of this group's ideology, rather than servants of the law … These critics are blinded by their own ideology. They simply refuse to accept that an impartial, legally sound and fair reading of the law can lead to an unpopular decision.”
Judges in Alaska, Colorado, Florida and Kansas also faced unsuccessful removal campaigns that year, but what happened in Iowa “sent a message to judges in other states that in retention elections you need to fund raise and campaign,” Bannon says.
Retention judges are by no means alone in this.
$15 Million for Judicial Races
In 2014, total spending in judicial races reached $15 million, with more than half — $8.5 million — coming from independent groups that include nonprofits, according to a Center for American Progress analysis of ad spending, called “Million-Dollar Judges.” But retention races are fertile ground for the kinds of campaigns that are most troubling to those who see money as undermining the judicial system.
Without hungry opponents trying to unseat incumbents, the biggest spenders on retention election campaigns represent business interests and trial lawyers, though causes like tort reform are unlikely to feature prominently in their commercials.
“Retention elections are more likely to have a negative tenor,” Bannon says, noting that criminal justice issues are the most likely to be the target of attack ads.
Richard Dieter, executive director of the Death Penalty Information Center, says the threat to judicial independence arises when the judge running for re-election “can imagine the ads, the soundbites, the pictures.”
“If you follow the law you're going to find some mistakes in trials and death penalty cases,” he told The Crime Report, referring to Justice White's case. “You're constitutionally obligated as a judge to say that's a problem. You're not supposed to say 'is this ok with everybody?' “
In the Tennessee of 2014, that fear is still palpable.
When the new Republican governor of Tennessee launched a statewide campaign to oust the three judges, each of whom had been selected by a Democrat, the torrent of political advertising that followed included more than $400,000 in television ads buys alone, according to the Brennan Center for Justice, and more than $1.7 million spent on the three races—including from Americans for Prosperity, a group linked to the Koch brothers; the Republican State Leadership Committee; the State Government Leadership Foundation; and the conservative nonprofit PAC Tennessee Forum.
Tennesseans for Fair Courts spent $255,650 refuting what it called a “smear campaign” against the judges that included an ad paid for by the Tennessee Forum, claiming the state's Supreme Court is “liberal on crime” and “helping advance Obamacare.”
The incumbents together spent $737,180 on coordinated campaign called Keep Tennessee Courts Fair to retain their seats, according to the Brennan Center study. And Justice Gary Wade spent an additional $116,860 of his own money, helping him pay for a commercial that featured retired Republican U.S. Congressman Bill Jenkins assuring voters that “Gary's a conservative judge who's tough on crime.”
Both the attacks ads and those launched by justices in their own defense have led to concerns that judges will be envisioning those campaign ads when making decisions that affect people's lives.
Skewed Justice, a report based on the work of a team of independent researchers from the Emory University School of Law, found that the more TV ads aired during state supreme court judicial elections, the fewer votes judges cast in favor of criminal defendants.
“The side effect for the criminal justice systems are really bad” says Bert Brandenburg, executive director of the non-profit Justice at Stake.
In Justice White's case, it was her decision to overturn a conviction that gave her opponents an opening, even if they were really more concerned with other things.
“The Republican Party campaigned against me and portrayed me as being soft on crime and anti-death Penalty, and the public believed them,” White said in an interview with The Crime Report.
“It's much easier to demonize someone when there's nothing to contrast with or nobody to contrast with. It's easier for the voter to just latch on to the demon.”
Kate Pastor is New York City-based freelance journalist. She welcomes comments from readers.