If Judges Campaign Like Ordinary Politicians, Can We Have Impartial Courts?

By now it’s routine: Another election season, another round of expensive state judicial elections destined to undermine the core American principle of fair and impartial courts.

Things got started in earnest at the beginning of May with North Carolina’s judicial primary. Attack ads underwritten largely by out-of-state Republican interest groups charged that a sitting state Supreme Court justice, Robin Hudson, coddled child molesters and “sided with predators” in a dissent while on the bench. Somehow she prevailed despite the negative publicity.

Now, a similar battle is taking place in Tennessee in advance of the state’s judicial elections on Aug. 7.

Three capable members of Tennessee’s 5-member Supreme Court — Gary Wade, Cornelia Clark and Sharon Lee — are campaigning to keep their seats in up-or-down retention elections. Distorting attack ads portray the three as soft on crime and the death penalty (citing a case involving ineffective assistance of counsel) and as supporters of “the Obama agenda” and “Obamacare” (even though they have never ruled on a case involving the health care law).

There is such a thing as reasoned discussion of candidates’ judicial records and philosophy. Plainly, 30- second cheap shots don’t rise to that level.

Tennessee’s three targeted judges were appointed by the state’s former Democratic governor, Phil Bredesen; and the defeat of even one would permit Tennessee’s current Republican governor, Bill Haslam, to name a replacement, creating a Republican majority on the powerful court. These stakes explain the intense assault unleashed against the trio, led by Tennessee’s Republican lieutenant governor, Ron Ramsey, and aided and abetted, it appears, by well-heeled conservative groups.

It’s clear from the startling 2010 defeat of three Iowa Supreme Court justices — who’d participated in the unanimous decision to allow same-sex marriage — that judges under attack can’t expect to prevail without fighting back. And that’s exactly what the three targeted judges are doing, raising significant sums and otherwise relying on support from lawyers who appear before them.

But no one should feel good about judges having to grovel for money and campaign like ordinary politicians. In their effort to counter the charge they are too liberal for the red state, moreover, the three targeted judges have engaged in some injudicious politicking themselves, stressing that they’ve upheld nearly 90 percent of death sentences, for example. For judges to campaign based on their decisions in criminal cases is a dicey business even when provoked.

Still, those who care about judicial independence and integrity should be rooting for the three well-qualified judges. Their ouster would only accelerate the politicization of state justice and send an intimidating message to elected judges nationwide, who may hesitate to render correct but controversial rulings, especially near an election.