Welcome to one of the most tumultuous Supreme Court elections in Tennessee state history. And there’s only one candidate.
The brouhaha began with attorney John Jay Hooker’s challenge to the state constitutionspecifically, his challenge to the process by which state Supreme Court justices are now elected. Along the way, Hooker’s constitutional challenge has stirred up an emotional debate over the rights of victims versus those of the accused.
The controversy grew ever more political as Republicans faced the prospect of actually electing one of their own to the state’s highest court. It made a mockery of a special judicial panel set up to resolve the situation, and it brought tears to the eyes of average citizens as they tried, often in vain, to understand what the hell was going on.
The saga began in March, when Hookera former Democratic gubernatorial candidate, a current independent U.S. senatorial candidate, and a man dedicated to the notion that the ideal of democracy has been utterly corruptedset in motion a chain of events that, to this day, are casting a long shadow over the Aug. 1 Supreme Court election.
Early this week, a federal court in Memphis was still pondering how to respond to an argument that the state Legislature had overstepped its bounds in 1994 when it changed the way Supreme Court justices are elected. Until two years ago, Supreme Court justices were elected in contested races, but in 1994 the Legislature changed that process. Now judges simply run against themselves, and voters either vote “yes” or “no.”
Hooker and his lawyer, Bob L. DeLaney, had argued to a Memphis court that only an amendment to the state constitution can transform Supreme Court elections from contested races to yes-no votes. If the court agrees, the election could either be postponed or invalidated. If that happens, a new election could be set for November.
Without Hooker’s challenge, the vote on whether Associate Justice Penny White should remain on the Supreme Court might have been largely ignored. It would have been simply one more race on a ballot that also includes primaries for local offices, state representatives, and Congress.
But this Supreme Court decision has generated intense statewide interest, largely because it has touched upon the incendiary issue of capital punishment. In the process, the media have fanned the flames by resurrecting a court decision in which a death sentence was sent back to a jury for reconsideration. Now the debate goes beyond the court’s willingness to demand state’s ultimate penalty. Now, in a society that many perceive as increasingly hostile and dangerous, the basic role of the court is in question.
White, a political neophyte and self-described country girl from Northeast Tennessee, finds herself battered and bloodied by hard-nosed politicians, prosecutors, and victims’ rights groups. Meanwhile, White says judicial canons bar her from defending herself on specific rulings. Instead, she says, she must rely on others to come forward in her defense, although she has publicly defended herself on general issues and has attacked some of her opponents.
The irony is that this first test of 1994’s so-called “Tennessee Plan,” under which Supreme Court justices are reviewed by an evaluation commission and then seek to retain their seats in an election with a yes-no vote, was intended to depoliticize the process by eliminating partisan races.
Hooker, meanwhile, lays the blame for the current unpleasantness squarely at the feet of the court. He maintains that the state constitution says judges “shall be elected,” and he argues that voters should have a choice of candidates for Tennessee’s highest court. He blames the court for taking too long to make up its mind on the issue and for throwing the Aug. 1 election into confusion.
Until 1994 trial judges and state Supreme Court justices ran in contested, partisan elections. Appeals Court judges ran on yes-no retention votes. Under the Tennessee Plan, a Supreme Court justice running for election is reviewed by a judicial evaluation commission, which recommends whether or not the justice should remain on the court. If the commission recommends keeping the justice, voters get to decide if they agree. If the commission declines to recommend the justice, the election is opened up for opposing candidates to enter the race.
The Tennessee Plan specifically addresses Supreme Court justices whose terms have expired, but it does not address justices who are filling unexpired terms. It does not say whether they first must undergo an evaluation before facing voters.
According to Vanderbilt University law professor James F. Blumstein, the law is unclear about the procedure when it comes to judges who, like White, are appointed before a term expires. In 1994 White was appointed to a vacancy created when Charles O’Brien resigned to work on Mayor Phil Bredesen’s gubernatorial campaign. The seat’s term expires in 1998. The state constitution requires a judge filling an unexpired term to face voters on the first Thursday in August in the next even-numbered yearin this case, Aug. 1, 1996.
State Attorney General Charles W. Burson interpreted the law to mean that White could run on a yes-no retention basis, without being evaluated, and he advised State Election Coordinator Brook Thompson that other candidates could not run against her.
Then Hooker appeared on the scene.
In March, he petitioned the state Supreme Court, challenging the Tennessee Plan. He also asked the court to recuse itself from considering the challenge, because it would be deciding law that directly affected its members. Hooker wanted the governor to appoint a special court to review the statute.
After his challenge was denied, Hooker and Nashville lawyer Lewis Laska both decided to run for the Supreme Court. They were told they could not enter the race, because White had declared her candidacy on a retention vote, barring other candidates.
Hooker and Laska next approached the Davidson County Circuit Court, claiming the election had to be open to all candidates because White had not been reviewed by an evaluation commission. Hooker’s challenge was thrown out because his law license had expired. Supreme Court justices are required to be licensed lawyers.
By that time, it was mid-June, and the Aug. 1 election was getting closer. Absentee ballots were being distributed, and early voting was just weeks away. Hooker again appealed to the Supreme Court, and, on June 25, the five justices recused themselves.
The governor appointed a panel of five new justices to hear the case, and on July 2 Martha S.L. Black, S. Morris Hadden, Lin S. Howard, A.C. Wharton Jr., and former Supreme Court Justice William H.D. Fones, acting as chief justice, set a hearing for July 5 to hear arguments.
Facing extreme time constraints, what followed was a string of hastily approved, sometimes confusing and conflicting opinions that left lawyers scrambling and had reporters hustling in the normally slow news days of mid-summer.
The ruling class
In the end, the special panel ruled the Tennessee Plan constitutional and disqualified Hooker from running because he did not have a law license. It disqualified Laska because the court held he was not a resident of East Tennessee. But it also said White was subject to a contested election and extended the deadline to 4 p.m., July 12, to allow other candidates to qualify to run against her. That deadline was eight hours after early voting was to begin.
In the meantime, according to Vanderbilt’s Blumstein, the special Supreme Court ruling, which only dealt with the Supreme Court election, left two other questions unanswered: Did the Tennessee Plan supersede laws governing 20 years of electing appellate judges, three of whom were up for election? And, because none of those three had been reviewed by an evaluation commission, would they too have to face opponents?
Burson interpreted the special court’s ruling to mean appellate court judges were also subject to contested elections and that opposing candidates should be allowed to qualify for three judgeships. Appeals Court Judge Holly Kirby Lillard immediately went to federal court in Memphis. White and Appeals Court judges William M. Barker and Jerry L. Smith joined him.
On July 12, after early voting had begun, U.S. District Judge Bernice B. Donald ordered all four names to appear on the ballot for a yes-no retention vote, bringing the process back to the point where it started.
Meanwhile, a June 3 Supreme Court opinion sending a death-penalty sentence back to trial court for reconsideration was under fire from conservatives and victims’ rights advocates.
In the case of Richard Odom, who raped and then stabbed to death a 78-year-old woman, a virgin, the court unanimously upheld the conviction but ruled by a 3-to-2 vote that the evidence was not sufficient to support the jury’s decision that Odom deserved the death penalty.
Two members of the court, Chief Justice E. Riley Anderson and Frank F. Drowata, dissented, and it was their dissension that sparked a highly charged debate over whether the court’s other three judgesincluding Penny Whiteare soft on crime.
The court’s sole African-American justice, A. A. Birch, wrote the majority opinion holding that the rape and repeated stabbing of Odom’s victim did not constitute the “torture” or “severe physical abuse” that would have sent Odom to the electric chair.
It is understandable that victims’ advocates and rape crisis counselors would raise a collective howl. Some conservatives were appalled that a death sentence was overturned at all, although the jury could, in theory, again sentence Odom to death a second time.
In 10-second sound bites and simple black-white analyses, critics to this specific case added a few other decisions and interpreted them broadly to mean that the court favors the rights of criminals over victims. But legal scholars warn against such simplistic interpretations of the court’s decisions.
The case took on additional political implications, when Tennessee’s two Republican senators, Fred Thompson and Bill Frist, waffled, then sent out statewide statements saying they voted against White because they worried she would never impose the death penalty. State Republican Party Chairman Jim Burnett jumped in the fray, saying his party would work to defeat White because of her “apparent sympathy with the rights of criminals over the rights of victims.”
Soon after, Thompson’s Democratic opponent, Covington lawyer Houston Gordon, sided with White. Former Gov. Ned McWherter, a Democrat who appointed White, weighed in last week when he circulated a letter supporting her.
White’s defenders cite statistics indicating that she has upheld approximately 85 percent of the convictions that have come before her. Prosecutors, public defenders, police organizations, and activists around the state have also taken sides. Republican Gov. Don Sundquist says he voted against White, but, otherwise, he has stayed out of the fight, probably because he will appoint White’s successor should she be voted out of office.
White seems overwhelmed by all this attention. Her sole experience with politics came in 1990, when she ran for a Circuit Court seat, winning by a 7-3 margin. Her campaign was built on presenting her credentials at civic gatherings and leading a group of women who became known as the “Hardee’s Saturday Morning Brigade.” After breakfast at a fast-food restaurant, they would hit the streets, ringing doorbells and distributing handmade door hangers.
White is only the second woman to serve as a Supreme Court justice, and at age 40, she is the current court’s youngest member by 16 years. After two years as a Circuit Court judge, McWherter appointed her to the Appeals Court in 1992. And in 1994, he appointed her to the Tennessee Supreme Court.
As a Supreme Court judge, she has participated in more than 100 decisions and has authored about two dozen opinions. A review of the cases she authored shows clarity of thought, an easy-to-follow logic, and a writing style that makes complicated legal issues understandable even to non-lawyers.
White is from a small family who lived in a small town about four miles from the Virginia border. She attended college on a work-study program, and, after graduation, she attended law school at the University of Tennessee, where she edited the Law Review and graduated with honors.
White was one of five people selected from thousands nationwide for Georgetown University’s prestigious E. Barrett Prettyman fellowship. At 32, she argued a case before the U.S. Supreme Courtand won.
After Georgetown, she returned to Johnson City, where she still maintains an office. She built a law practice on referrals from other lawyers and performed pro bono work for the Police Benevolent Association, the Animal Protection League, and Girls Incorporated. She regularly represented indigents in civil and criminal matters, and she taught criminal justice classes at ETSU.
But it’s clear White is not prepared for the maelstrom that engulfs her now. She wants people to like her, and it’s clear that she has been deeply affected by the harsh words that are being hurled at her. But White also seems determined not to let the current turmoil affect the way she approaches the law.
It’s worth noting that John Jay Hooker, the man who started all the controversy, says White’s legal record on crime and the death penalty is not the issue. What is at issue, he maintains, is the fact that she, along with her four colleagues, deprived voters of the chance to choose their judges from a slate of qualified candidates.
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