Why Our Supreme Court Justices Deserve to be Retained

Hello!  My name is Mike Tant and you probably don’t know who I am.  I’m normally not a very public person.  While I may be a stranger, you probably have heard of a commission on which I serve.  For the past six years I have been a member of the Tennessee Judicial Performance Evaluation Commission (JPEC), the past two years as Vice Chairman. I was appointed by our Lt. Governor and have enjoyed my service to the state.  The Commission is composed of three trial judges, three attorneys, and three representatives of the public at large.  I am one of the non-attorney members. Last fall, when some of our work, (which is by law supposed to be kept confidential) was leaked to the media, we became part of a feeding frenzy about how Tennessee chooses and elects judges for our appellate courts. Our “misdeeds” have been well publicized in the Nashville newspaper and we have been sued by a former candidate for governor. We are the group that is tasked by the legislature to evaluate appellate court judges and issue an opinion to the voting public whether they should be retained or replaced.  I am writing this to share with you what I “know” about the process and the people involved.  I would ask you to consider what is presented here and compare it to the less than accurate information that have been shared by certain members of the media and even some members of the Legislature.

Just this week, according to news reports, several members of the Legislature expressed the opinion that the JPEC is just a “rubber stamp” commission that has never caused a sitting judge to be replaced.  This is a shamefully inaccurate statement.  Unfortunately, we are dealing with politicians who prefer a public lynching of judges that are on the wrong side of the current political reality.  In fact, those same legislatures have written into law the criteria that JPEC must use in evaluating each judge.  Whether the General Assembly likes it or not, those criteria do not include whether the judge is a Democrat or a Republican; whether the judge is a liberal or a conservative; or whether they are strict constructionist or not. 

The criteria, imposed by the law, which we are bound to use by our oath of office, is to evaluate each judge is to whether they are properly and in a timely manner serving the public, particularly those that appear before them; and, are they being consistent with the laws of the state.  For each judge we review the results of surveys of their performance completed by practicing attorneys, trial judges, other appellate judges, and court personnel.  Each judge must complete a detailed questionnaire on all their activities which may affect their service on the bench.  They also have to submit financial and conflict of interest information. We also receive a tabulation of how long it takes for each judge to issue an opinion.  Each judge is required to submit copies of several opinions they have authored for review by the Commission.  All of this information is by law to be held in confidence by JPEC.  Each judge appears in person before the Commission for an interview.  The meetings, during which the interviews are conducted, are open to the public. 

Following the interview process, the Commission meets in executive session to discuss the performance of each judge and take a preliminary vote. If the majority of the Commission believes a particular judge is not performing at an acceptable level, that judge is so notified in confidence.  The law is quite clear that the preliminary decisions of JPEC are confidential until they have been forwarded to the specific judge and that judge has had an opportunity to request a re-hearing before the Commission. The Legislature, in its wisdom, saw that a judge who may not have met the expectations of the office during his term, has the option to either appeal to the Commission or chose to retire.  It should be noted that during my tenure on the Commission, several judges have chosen to retire rather than choose to stand for re-election knowing they may receive a negative assessment.  By law, the Commission is not permitted to publically identify a judge who makes this decision.  (I should note that also during my tenure, there have also been several judges who retired early due to health or personal reasons.)

 When I was sworn in as a member of the Commission, I took an oath to abide by the laws governing the Commission.  I am completely comfortable that I have fulfilled that oath.  Several individuals have argued that the Commission did not follow the Tennessee Constitution because we have recommended judges for retention.  The Tennessee Supreme Court has ruled that the Tennessee Plan, as it presently exists, is consistent with the Constitution.  The law governing the operation of the JPEC and the rulings of the Supreme Court are the things that govern our operation – not media opinions or individuals who do not like the rulings of the Supreme Court.

I have always been a supporter of the Missouri Plan (the model for the Tennessee Plan) because it keeps partisan politics out of the judicial process.  I have interviewed each of the appellate judges at least twice and I can confidently report that this group of individuals should be acknowledged as some of the hardest working people in Tennessee and as individuals whose integrity rises above partisan politics.  Though I am normally a conservative and Republican voter, I whole-heartedly endorse the retention of Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee.  They have served our state with honesty and great honor – they deserve our support and do not deserve the misleading attacks generated by out-of state political operatives.