In 1970, Winfield Dunn, a Memphis Republican, and I, a Nashville
Democrat, ran against each other for governor of Tennessee. His victory
over me greatly altered the political power in this state and was so
disturbing to the Democratic-controlled legislature that it passed a
law permitting the members of the state Supreme Court and the Court of
Appeals to run for reelection without opposition.
That law provided for so-called retention elections, which
eliminated opposition to a sitting judge from another candidate. It did
so to keep the Republican Party from being able to challenge the seated
Democratic judges across the state, though some Republicans voted for
it and it was signed into law by then-Governor Dunn.
The fact remains that retention elections as we know them today were
born of party politics, and today’s Democratic Party is making every
effort to retain retention elections — notwithstanding the fact
that, under the law, retention elections are scheduled to expire in
June of this year. In legislative vernacular, the law “sunsets” and
will go out of existence unless replaced by a new law.
Make no mistake: The battle over retention elections is hard-fought,
indeed, and is being dominated by party politics.
I am delighted now to be on the same side as Lieutenant Governor Ron
Ramsey and numerous other Republican officials in the legislature
— as well as former Governor Dunn, who now opposes retention
elections and is providing leadership to get rid of them.
In my political heyday, I was regarded as a liberal, because I
favored civil rights legislation, opposed the Vietnam War, and was a
confidant of Attorney General Robert Kennedy. But I believed then, as I
believe now, that if you are in public life, you have a sacred duty to
honor the Constitution. I respect all who do and disrespect those who
don’t.
Non-lawyers can read the Constitution as well as lawyers can, and if
you are a non-lawyer, I urge you to take the next step: Read the
Constitution and form your own opinion.
I have found just as many Republicans who are friends of the
Constitution as I have Democrats. The meat of the problem is that
members of the present Supreme Court — who are lobbying with the
legislature to continue retention elections so they may be elected
without opposition — are doing so in direct violation of the
specific language of the Constitution. It requires — in Article
V, I Section 3, 4 — that all state judges in Tennessee be elected
by the “qualified voters of the state.”
It is obvious that that language does not require that some judges
run in contested elections, like all trial judges in the state of
Tennessee, while at the same time permitting other judges to run in
uncontested elections.
The Constitution was written to govern all of us, and the Tennessee
Bar Association, headed by Memphian Buck Lewis, has done “we the
people” a great injustice in claiming that the Constitution can be read
so as to deprive the people of their choice in the election
process.
It is shocking to me, as a member of the Tennessee Bar for more than
50 years, that the leadership of today’s bar would conspire with
members of the Supreme Court and the attorney general to deprive the
people of their sovereign right to elect all judges in the same mode
and manner that we elect the governor, the legislature, the sheriff,
and the tax assessors — in the “free and equal election” required
by Article 1, Section 5 of the state Constitution, a right that Article
11, Section 16 insists is “inviolate.”
“When I use a word,” Humpty Dumpty said to Alice in Lewis Carroll’s
Through the Looking Glass, “it means just what I choose it to
mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean
different things.”
“The question is,” said Humpty Dumpty, “which is to be master
— that’s all.”
No. Humpty Dumpty speaks for politics. Alice speaks for the law.
John Jay Hooker, a three-time Democratic candidate for governor, is
an activist and litigant regarding several issues of constitutional
law.
