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TBA President on criticism of Tennessee judges

By Buck Lewis, TBA President
NASHVILLE, May 1, 2009 — 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.

The 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.


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