OPINION: Tennessee's 'super' court idea is super GOP partisan

Pam Sohn, Chattanooga Times Free Press, Tenn.
·4 min read

May 3—Trust our Tennessee legislators and governor to continue devising ways to ignore our votes and our wishes. This time, they want to thwart elected judges — whose decisions they don't condone — by creating a kangaroo court of their own liking. They have dubbed their would-be proxy as a statewide "super" chancery court.

This would be a three-judge panel — first appointed by Gov. Lee and later elected — that would hear all constitutional challenges to state laws. To the tune of $2 million a year, this new court would essentially duplicate a system of Tennessee chancery courts that have been handling state and local business for a century and a half.

Why do our GOP-majority lawmakers and governor want to do this? Politics, of course. Partisan politics.

The bill of Senate Judiciary Committee Chairman Mike Bell, R-Riceville, this measure is a response to constitutional challenges that have not gone in Republicans' favor over the past few years. Lee's education savings account program and Republicans' fetal heartbeat law are two examples. So, too, was the ruling about absentee balloting last fall during concerns about the spread of COVID-19.

Republicans don't like the fact that already-elected judges in Nashville, with one of the most liberal voting constituencies in the state, are by virtue of jurisdiction most often the courts where these cases are heard. And the Davidson County chancellors haven't decided cases the way the super-majority, super-conservative Republican legislators would like.

So they want to create their own ballgame, ball, ballfield and go home. Forget that voters in all of Tennessee's representative jurisdictions elect our chancery judges.

Bell's legislation, and a new amendment to it, not only would allow the governor to appoint the new "super" three-judge panel (a virtual shoe-in for the appointed incumbents' eventual election), but also would allow the attorney general to move pending cases to the statewide "super" chancery court.

In our view, this is a politically motivated tactic to control the state's judicial system.

Chattanooga attorney Lee Davis, one of the prominent voices speaking out against the bill and helping to fight it, says it is not only unnecessary but also plainly jeopardizes the integrity and independence of the state's judicial system.

"You ask yourself, 'Why is the governor and Sen. Bell, why are they seeking to politicize the judiciary?' Because that's what is happening here," Davis said. "The problem with this is, it erodes public confidence in impartial judges."

For his part, Bell makes no bones about his reasoning: The legislation is driven by GOP gripes over Nashville judges who — now per state statute — hear many of the challenges. Those chancellors, Bell fumes, are elected by some of the state's most liberal voters, resulting in the ruling last year that made it easier for Tennesseans to vote absentee by mail during the pandemic.

Horrors! A ruling that made it easier for all of us — Republican and Democratic — to vote during a pandemic that has killed more than 577,000 Americans, more than 12,100 Tennesseans and nearly 500 Hamilton County residents. Republicans even tried unsuccessfully to remove the Davidson chancellor who made that ruling. Having failed at that, they are now trying a different tack — by making a new law to make a new parallel court.

"I could point to a number of cases over the last several cases, the most recent one being the voter case [absentee ballots]," Bell said. "I could point to the ESA [Education Savings Account/school voucher] case, I could point to cases involving BEP [state school funding formula] distributions, any of these cases where state laws and constitutionality of state laws have been challenged."

(Please note: The ESA decision was upheld in appeals courts and now is set for deliberation in the Tennessee Supreme Court. The BEP case, too, remains in the courts.)

"So here's the question," Bell said. "Why should judges who are elected by the most liberal constituency in the state why should they be the ones deciding cases that affect the state in general?

Davis, on the other hand, calls it a rushed "political solution" built on a foundation of political influence that "creates a shadow judiciary that compromised the integrity of the court system we have."

In an open letter to Lee and the General Assembly, Davis and others fighting the move write: "This is a clear conflict of interest. Allowing a court comprised of judges who are hand-picked at first by the governor to rule on legal cases challenging the governor's own executive orders and any bills he signs into law is a recipe for disaster. Politicians shouldn't get to pick the players, the field and the referees."

We couldn't agree more. And time is wasting as it's up this week. Call your Tennessee lawmakers and your governor's office. Don't let their sour-grapes, $2-million-a-year boondoggle become law.