As a member of Tennesseans for Fair and Impartial Courts, attorney Max Bahner believes the current system of appointing appellate court judges preserves the integrity of this state’s judiciary. Conversely, he says handing the positions over to popular elections would create an unsavory partisan environment and open the door to big money manipulation of the courts. Mr. Bahner explains more in this interview with the Hamilton County Herald.
What is the purpose behind Tennesseans for Fair and Impartial Courts?
We’re concerned with preserving the integrity and independence of appellate judges. Under the Tennessee Plan, a committee made up of people from across the state vet several nominees and then recommends three to the governor. The governor can choose one of those or reject that first group and ask for another group. He or she then appoints one, and that person is sworn in and then sits on the bench until the next election. Before their re-election, another group vets them to see if there are any problems.
Some in the legislature feel every judge in the state ought to be elected in popular elections. We don’t agree.
I would not feel comfortable – and I think most people in Hamilton County would not feel comfortable – if a case was tried in Hamilton County, and one side lost but felt as though it should not have lost, and one of the appellate judges had received campaign contributions from a person or group on the other side.
If I’m running for the state legislature, and I happen to be walking down the street with a judge, and I run into someone and say, “I hope you’ll vote for me,” what if that person says, “Yeah, and I’ll give you one hundred dollars,” and then turns to the judge and says, “I want to give you one hundred dollars, too.” That might be seen as something that might influence the judge, so, we don’t think that should happen. We think the integrity of the system is fundamental to our way of life.
Is this issue also about public perception?
In Alabama, they spend six million dollars on Supreme Court races. And we talked with a group from Texas, where everyone from the trial court bench to the Supreme Court is elected in partisan elections, and for trial court benches in some of the highly populated counties, it takes one, two and even three million dollars to run for office. How is that going to affect people’s perception of the independence of the courts?
But a lot of Tennessee’s trial judges are elected in popular elections.
But you don’t have to raise that kind of money to run.
And if an error occurs in a trial court, it can be corrected at the appellate level.
The appellate courts are safeguards for the public. I like the fact that money does not corrode their decision-making.
We have a human system. And even the most intelligent and well-meaning judge can make a mistake. But you want people in the Court of Appeals to look at cases objectively. Even if the case involved the most popular trial court judge in the state, you want the appellate court to be able to say, “You made a mistake,” and reverse or remand the decision.
I wish all of our judges were appointed.
Some legislators say the current system flies in the face of the Tennessee Constitution.
The Tennessee Constitution says the citizens of the state shall elect judges. That’s a loose paraphrase. But two cases came up before our Tennessee State Court – and all of the justices recused themselves and the governor appointed other judges – and those two courts sided with the way we currently do things because judges still have to face election.
How important are Tennessee’s recusal rules to preserving the integrity of our judiciary?
People all over the United States are looking at our recusal rules as one of the two best in the country because any judge whose independence might be questioned needs to recuse. And if the judge declines to recuse, I can file a motion to recuse, and the judge can agree or not agree. The idea is to try to preserve an open court where people feel comfortable and will get a fair shake.
You have practiced law for more than 50 years. Do topics like this still capture your interest? Do you enjoy taking part in the process?
Oh, I do. I find the law endlessly fascinating. And it’s always changing. And it ought to always change because our needs change. When I started practicing law, we didn’t have many of the things we have now. When I did research, which I enjoyed doing, it was slow, cumbersome work. You’d have to look through the decennials, which gathered briefs about cases over a ten-year period, and then read the cases. It was slow, slow business. But now we have computers. And that has spawned a whole new area of the law.
Change is good, but in this case, you’d like to see what we have in place preserved.
We need to preserve the system so we don’t have contested elections of appellate court judges. And I’m optimistic that’s going to happen.