TN Supreme Court More Liberal Than State
By Sean Evans, Chair and Professor of Political Science
Jul 28, 2014 -
One of the main arguments of those wanting Tennesseans to reject the three Supreme Court Justices up for retention votes is that the Tennessee Supreme Court (TNSC) is too liberal for Tennessee. While the arguments they use in their ads do not support this argument, there is strong evidence that that the TNSC is more liberal than the state as a whole. For those who believe in checks and balances, retaining the justices up for retention may be a good ideas as it may moderate our more conservative legislature. However those who believe in accountability may see this as further evidence that the justices need to be replaced.
To show the Supreme Court is more liberal than the state, I use a measure of state Supreme Court justice ideology created by Bonica and Woodruff (2012). Bonica and Woodruff construct measures of judicial ideology using campaign finance scores (CF scores). These scores are based on the “contributions judges make to political candidates, the contributions made by individuals to judge’s campaigns (if judges elected), and the ideology of the appointing body if the judge is appointed.” The basic idea is that we can tell something about one’s true political opinions by whom we donates to. In an election, one must choose between the candidates running when the candidates may not be good representations of one’s true political beliefs. However, individuals usually only give to people who they truly support for personal or ideological reasons. Thus, we can use campaign contributions to estimate one’s political ideology.1
While the CF scores do not measure judicial ideology per se, the scores are a useful proxy as they are reliable predictors. Political scientists believe the CF scores are reliable measures of ideology because the CF scores of members of Congress are strongly correlated with the member’s DW-NOMINATE scores. More importantly for our analysis, Bonica and Woodruff test the CF scores of judges in 8 states by correlating the judges’ CF score with ideology measures based on actual votes on cases and find a strong relationship. Thus, I feel confident that this measure is an accurate assessment of the justice’s ideology.
Turning to the analysis, Figure 1 shows the justices on an ideological specturm based on their CF scores. Justice Lee is a strong liberal (-.805), Justice Clark is a liberal (-.403), and Chief Justice Wade is left of center (-.136). Newly appointed Justices Kirby and Bivins are conservative (.584) and strongly conservative (.786), respectfully, These two justices replace Justices Holder (.401) and Koch (.842) which ensures that the court's ideological make-up will not differ dramatically with the new appointments. This line-up also ensures that the median of the court will continued to be left of center, as it has been for the entirity of Bonica and Woodruff's study from 1990-2010.
Figure 1
The Ideological Dispersion of the Tennessee Supreme Court
-1_______________-.5_________________0_________________.5_____________1
Lee Clark Wade Kirby Bivins
If we assume the justices are arrayed along an ideological spectrum as shown below and we assume that the justices votes their politicalphilosophy, the pivotal justice is the justice in the middle of the court which would be Chief Justice Wade. The Chief Justice is pivotal in the sense that the two liberal and two conservative justices must persuade Wade to join their opinion to have a majority. Consequently, these justices have to move their decision closer to Wade's ideal point to have a majority on the court. As such, we would expect the court, as currently constituted, to produce more left of center decisions, which would be contrary to the opinions of most Tennesseans.
To take out analysis further and determine if the Court is out of touch with other state political actors, I compare the court median (J) with the ideology of the Governor (G), Attorney General (A), Secretary of State (S), State House Median (H), State Senate Median (Sen), and median ideal point for all winning candidates (W) elected in state level elections between 2000 and 2010. The ideology of Attorney General Robert Cooper, Secretary of State Tre Hargett, and median of all winning candidates comes from the CF scores produced by Bonica and Woodruff. I create unstandardized CF scores for the other political actors based on the formula in footnote 1. This process leads to a CF score of .352 for Governor Haslam, a .68 to represent the median member of the Tennessee State House, represented by Tim Wirgau, and a .388 to represent the median score of the Tennessee State Senate, represented by Bo Watson. I determine the median member of the State House and State Senate using common space ideological scores (similar to DW-NOMINATE) produced by the Sunlight Foundation. Even though I am comparing different ideology scores, the ideology scores line up similar to what one would expect, except we would probably expect Governor Haslam to be to the left of the State Senate.
Ideological Summary of Tennessee State Politics (2014)
1 __________________-.5_________________0_________________.5________________ 1
A J W Sen G H S
If we examine Figure 4 in the Bonica and Woodruff paper, we see that the TN Supreme Court is the red state, i.e., consistently Republican state, with the most liberal Supreme Court. The closest competitor to Tennessee is Montana, which has consistently elected Democrats to statewide office, even though it is a red state at the presidential level. Since Tennessee Democrats controlled the state legislature, and thus the nominating commission, when Republican Governor Don Sundquist made appointments, which influenced his selections, and Democratic Governor Phil Bredesen made the other three appointments, it is not surprising that the TN Supreme Court is more liberal.2
For those who believe in democratic accountability, the age of the current justices almost guarantees that the Tennessee Supreme Court will remain liberal. Usually, gubernatorial appointments would slowly lead the TN Supreme Court in a more conservative direction as Republicans, the majority party of Tennessee, would probably control the governorship more. However, the process would take more time in Tennessee this time. Of the returning justices, Chief Justice Wade is the oldest at 66. The fact that he is running for a new term indicates that he will probably serve more than half his term, at a minimum, while the other two justices are young enough to easily complete their eight year terms. Thus, we should not expect another Supreme Court appointment until a new governor takes office in 2017 and potentially not until 2021. This result means that the Tennessee Supreme Court will remain more liberal for the forseeable future.
For the 2018 elections, we are not sure who will win. There are rumors that Senator Bob Corker prefers being an executive over a legislator and thus will run for governor, especially if the Republicans do not gain control of the Senate in 2014. However, there is strong evidence that Corker wants to run for president and the Senate is a better stepping stone for that run, especially if he becomes Chair of the Senate Foreign Relations Committee. If Corker decides to run for governor though, most analysts believe he will clear the field and coast to victory. A Governor Corker would then appoint three conservatives to the Tennessee Supreme Court in his first term to make the TN Supreme Court more in line with the ideological preferences of the state.
If Corker does not run, the race is wide open. The fact that Tennessee has alternated between Democrats and Republicans in the governor’s mansion for 36, most likely 40 years in a row, makes the Democratic nomination worth having in 2018. The Democrat who clearly wants to run in 2018 is Nashville Mayor Karl Dean who has struck a moderate profile, at times, to make a statewide run possible. If he won, we would expect him to appoint liberal justices more in line with the current three justices up for retention, unless Amendment 2 passes this year and the State Senate, assuming it remains Republicans, rejects liberal justices.
Since the election of a Republican governor in 2018 is not guaranteed, there are those who believe that defeating the Supreme Court Justices up for retention is the only way to ensure that the TN Supreme Court is aligned with the ideological preferences of the state. Governor Haslam, assuming he wins reelection as expected, would then appoint three conservative justices who would be more in line with the state. It would also ensure a more conservative Attorney General for the next eight years.
However, there are many who feel that the Republican Governor and state legislature needs a check. Tennessee Republicans have a supermajority in both chambers of the state legislature and there is no evidence that this will change after the 2014 elections. In fact, the Tennessee State Senate should become even more Republican. Seeing that the Republicans own the political branches lock, stock, and barrel, there may need to be an effective check on the state legislature which the Supreme Court could provide.
So as you make your decision about whether to retain or reject Justices Clark, Lee, and Wade, keep in mind whether you want the Supreme Court check the legislature or reflect the state as a whole. If you can answer that question, your decision is easy.
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1 Since judges are appointed in Tennessee, I create ideology scores for the justices based on their contributor score. To determine this score, the amount of money given to the federal office holder is multiplied by their DW-NOMINATE core for each contribution and then divided by the total campaign contributions. DW-NOMINATE are the most common used ideology scores used for members of Congress. DW-NOMINATE basically takes all the votes that a member takes and identifies who votes with whom most often to arrange office holders on an ideological spectrum. Those on the far left receive a -1, those on the far right a 1, and the person in the middle of the ideological space receives a 0. Using an example from Bonica, “if a contributor gave $1000, $500, and $1500 to three Democratic candidates with the respective ideal points of -0.5, -0.1, and -0.4, the ideal point estimate given to that contributor would be:
(-0.5*1000 + -0.1*500 + -0.4*1500)/(1000+500+1500) = -0.383.”
The scores are then standardized by comparing them to all other contributors. Based on this data, the justice is given an ideology score, similar to DW-NOMINATE, of 1 indicating a conservative ideology, 0 indicating a moderate, and -1 indicating a liberal.
For my analysis, I use Bonica and Woodruff’s CF scores for the existing justices. I then use Federal Election Commission (FEC) records to identify scores for the newly appointed justices, and other political actors to give a more accurate picture of Tennessee politics today compared to the politics of Tennessee of the mid 2000’s when Bonica and Woodruff conducted their analysis. Since I will only be conducting analysis of seven people, I do not have enough members to standardize as Bonica and Woodruff so I use the unstandardized measures for the other actors. By using this data, there would probably be some slight differences in the CF scores used here and the standardized scores.
For individuals who gave money to federated accounts, I used the average ideology score of the elected officials of the relevant party for that congress to determine that ideology score. For the VolPac that Bill Haslam contributed to, I use Senator Bill Frist’s DW-NOMINATE score since it was his PAC. For Al Gore’s ideology in 2000, I used Bill Clinton’s ideology score as a proxy.
2It should be noted that Governor Bredeson did appoint Republican William Koch to the TN Supreme Court but most think this was out of spite because of his disagreement with the nominating commission’s desire to force a certain justice on him.