Hosts Leahy and Brewer Discuss Tennessee Supreme Court Retention Election and Justice Jeffrey Bivins’ Unavailability for Interviews

Live from Music Row Thursday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed all-star panelist Clint Brewer in-studio to discuss the unavailability of Tennessee Supreme Court Justice Jeffrey Bivins to be interviewed as the retention election draws near.

Leahy: We are joined in-studio by our all-star panelist and friend Clint Brewer. Clint, there is an election going on here that probably not a lot of folks are talking about, and that has to do with the Tennessee Supreme Court. Are you familiar with the Tennessee Supreme Court?

Brewer: Yeah, I’ve heard of them. They have five members, and I’ve tracked a lot of their recent decisions here, and I think that as a judicial body, their decisions are quite good, actually. We’ll talk about those just in a second.

But the five current justices are Jeffrey Bivens, who represents the middle section of the state – apparently, you have to have one judge from each section of the state. There are three sections of the state, the three stars.

Brewer: Three grand divisions.

Leahy: The three grand divisions.

Brewer: Although on the website, the Californians who just moved here are the grand divisions.

Leahy: On the website, they refer to them as sections. But grand divisions is, I think, more accurate. That is what they’re called. So Jeffrey Bivins is from the middle grand division, and he was appointed back in 2014.

Sarah Campbell, just recently appointed from the middle section, Holly Kirby from the western grand division, Sharon Lee from the eastern grand division, and Roger Page from the western grand.

Those are the five justices. And the process of naming a Supreme Court justice is they’re basically nominated by, appointed by the governor, and confirmed by the General Assembly, I believe. And we just had the most recent appointment, Sarah Campbell, an appointment for a previous justice that passed away, unfortunately.

Brewer: A process that’s been debated for many years.

Leahy: Yes, and there’ve been back-and-forths about how you keep them, and basically the way that it works thereafter – after you get appointed to an eight-year term on the Supreme Court – now, the current process is you face a retention election.

Brewer: That isn’t covered, nobody really understands, and very few people get it when they go to the ballot box.

Leahy: Yeah, and I think in the history of Tennessee, one Supreme Court justice has been kicked out. Penny White, back in the ’90s.

Brewer: The infamous two-guys-and-a-fax-machine campaign, that was called? There was a group that went after her. I don’t really even remember what the issue was.

Leahy: She let a murderer out early or something.

Brewer: This is like pre-internet, folks. So there was literally two guys and a fax machine sending out …

Leahy: And it was a hot-button issue. And she ruled in a way that people thought was wrong. And she was rejected by the voters pretty roundly. She’s now on the faculty at the University of Tennessee Law School.

Brewer: And by all accounts was actually a pretty good Supreme Court justice. Other than this …

Leahy: That one was sort of considered pretty egregious. Now we’ve got a circumstance where apparently the last time, in 2014, there were a couple justices up for retention election, and they were, it was controversial, but they and then-Lieutenant Governor Ron Ramsey didn’t like some of the things they did. There was some back-and-forth. They ended up being retained, but it was kind of bruising for them.

Brewer: A little shot across the bow.

Leahy: But it’s the process we have here. It’s the constitution here. So one justice is up, former Chief Justice of the Tennessee Supreme Court Jeff Bivens from the middle grand division is up for retention election, on August 4th.

And I must say, I know Justice Bivens. He’s an acquaintance. I would say we have a very friendly relationship, and I can say that he has done, from a judicial point of view – I’ve not followed all of the rulings, but I think he’s been quite good in terms of the rulings that he’s had.

The Supreme Court, on the whole, challenges of the ability of the Republican Party to determine its nominees. The Supreme Court unanimously ruled that the Republican Party can pick its nominees under its own rules.

That was a recent decision. I think Justice Bivens authored that decision, and I think it was a good decision. Also good decisions on several other cases. The voucher bill that was determined to be constitutional, I think they made the right decision there and a couple of other decisions that I think, judicially, the Tennessee Supreme Court, I think, is pretty strong.

Brewer: Can you imagine if we had retention elections on the U.S. Supreme Court?

Leahy: We don’t, but yes.

Brewer: I’m on the fence about the whole concept of the retention elections. They’re not really elections. You could vote the person out and turn around and just reappoint them.

Leahy: Well, again, it’s designed to have some level of accountability. I will tell you. It is in the constitution. So I am going to make some news here. In terms of The Tennessee Star, for five and a half years, I’ve never said how I’m going to vote on anything.

I’ve never endorsed anybody. Likewise, here in The Tennessee Star Report, three and a half years, I’ve never said how I’m going to vote. I’ve never said anything, and we don’t endorse people. I’m going to tell you how I’m going to vote.

Brewer: This is a personal endorsement. This isn’t The Tennessee Star.

Leahy: No, it’s not an endorsement. It’s a statement of how I personally intend to vote on the Jeff Bivens – Justice Bivins – retention election, August 4.

It’s on your ballots here. I’m going to vote “yes.” I think he’s a very good justice. Okay. Now that’s the good news. You’re waiting for the other shoe to drop?

Brewer: I just assumed there was one. Yeah, yeah.

Leahy: Here’s the other shoe, and we talked about this. We had asked the Supreme Court to interview Justice Bivins, because there is an election. It’s a retention election. And so people are going to vote, and so they are going to need to know what the basis of the vote is. We have the impression from, not from Justice Bivins, but the folks we talked to, that he would be available in the studio. We called them yesterday, and they said no.

To me, this is a mistake, because the people need to hear your voice; if you were on the ballot for a retention election you should be able to answer questions about your judicial philosophy.

Brewer: I guess ideally yeah, they should. But is it a mistake for him? Because then it’s just drawing attention to himself. You are talking about one person in the history of the state who has ever not been retained in modern elections?

If I were him, I wouldn’t do anything. He wants to get retained, right? I would do what everybody else who gets retained and just do nothing.

Leahy: But there is a reason why the constitution says there is a retention election. And people need to be aware of it. And so we are disappointed.

Listen to the interview:

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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Republican National Convention” by PBS NewsHour CC BY 2.0.


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