Baker points out that Holder "dispensed with judicial caution" in her statements. From the article,
Addressing the downtown Kiwanis Club at The Peabody, Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. “I’m gong to talk about basketball,” she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, and “show bits and pieces of video of some of these games where there were bad calls.”One problem with this clever analogy is that basketball referees can't get away with writing the rules as they go, and referees are truly accountable for their performance.
After asking rhetorically, “Don’t you think that’s a more democratic way to go about it?” she answered her own question this way: “It is ridiculous, isn’t it? You wouldn’t want your officials to be elected.” Then came her clincher: “Judges are like those officials. You rel[]y on them to call the game fairly.”
But Holder really pulled out the stops with this fallacious Appeal to Popularity (among lawyers):
The irony is that what we have is the envy of other states, but we are very much in danger of losing itWell, it's a safe bet that every judge in America would rather not have to ever face criticism for their conduct or ever face an opponent in judicial elections. And “the Tennessee Plan” in particular is certainly the "envy" of every activist judge in the country.
A national survey of state judicial selection systems reflects that “the Tennessee Plan” is without parallel in being stacked in favor of the Lawyers Lobby, and no other state with Constitutionally-mandated election of judges changed to "merit selection" without changing their State’s constitution.
Actually, I think it is ridiculous to see referees joining the home team in a full-court press.
Update:
Kleinheider and Kleinheider II
Ramsey via Jeff Woods
What is the "lawyers lobby" and what do they want?
ReplyDeleteGood question. It's not exactly a commonly-used phrase, but the best definition is probably found here under "Makeup of the Judicial Selection Commission."
ReplyDeleteWhat do they want? To have the greatest control over who can be a judge . . . folks who view courts as super-legislatures are keen to the importance of picking who the judges are.
Recently, harsh critics of our judicial selection system of merit selection, performance evaluation and retention elections for Tennessee’s appellate judges have unfairly assailed Supreme Court Justices and other members of the judicial branch for expressing their viewpoints in support of the current system. These critics have suggested that it is inappropriate or even unethical for judges to comment on matters related to the way in which judges are selected. Judges, and particularly Supreme Court Justices, who lead a separate and co-equal branch of government have a responsibility to speak for that branch. There is no legal or ethical prohibition restraining that responsibility, nor should there be.
ReplyDeleteThe architects of our Constitution established three branches of government – the executive, legislative and judicial branch. Each of those branches is given specific responsibilities. The balance of power between those three branches has led to the world’s most successful model of self-government. When deciding cases, all judges are sworn to do so in a fair and impartial manner. In addition to the role of judge or impartial referee, justices of the Supreme Court, particularly the Chief Justice, as the head of the co-equal judicial branch, have a responsibility to advocate for measures which lead to the most effective administration of justice.
Suppose, for example, the Governor was to decide that he believes that the terms of state senators should be shortened from four years to two years. The Speaker of the Senate would be expected to speak to the merits of that proposal. Indeed, we would expect that the speaker would talk with the media and colleagues and try to persuade them to his viewpoint. No one would find this inappropriate or label it as unethical lobbying. The Justices of the Supreme Court and the judges of the other courts are doing no less than fulfilling their responsibilities as members of a co-equal branch of government when they advocate for their viewpoint on judicial selection.
The Code of Judicial Conduct adopted in virtually every jurisdiction in this country says that each judge has an affirmative responsibility to diligently discharge their administrative responsibilities. Judges are ethically permitted to speak concerning the administration of justice. Comments to Canon 4(b) of the Code of Judicial Conduct specifically say that, “Judges may participate in efforts to promote the fair administration of justice, the independence of judiciary and the integrity of the legal profession…”
The Tennessee Bar Association, representing the views of more than 80% of its members, and the unanimous view of its Board of Governors, continues to advocate for a continuation of a system for merit selection, performance evaluation and retention elections for Tennessee’s appellate judges. This viewpoint has achieved widespread support among the business and civic community. Attacks upon judges for sharing their views are terribly misplaced in our democracy.
George T. Lewis
Tennessee Bar Association, President