- Associated Press - Wednesday, March 12, 2014

NASHVILLE, Tenn. (AP) - A leading conservative member of the commission that evaluates Tennessee’s appellate judges says the panel was influenced by partisan politics in deciding whether a judge on the state’s highest court was fit to serve.

Through an open records request, The Associated Press obtained an Oct. 10 email from Judicial Performance Evaluation Commission member Chris Clem to Republican leaders in the state Senate.

In it, Clem argues that Tennessee Supreme Court Justice Bill Koch, a Republican, is not as conservative as many of his fellow Republicans think, stating “Koch may be the most liberal member of the Court.”

Clem, a former Republican state representative from Chattanooga, goes on to say, “I find it amazing that Koch’s ties to Lamar Alexander and his republican credentials continue to allow him to serve.”

In an interview with the AP, Clem said he sent the email because he was getting “pushback” for “going after” Koch, who he believed should not remain in office because of his slow turn-around time in writing opinions. Clem would not say from whom the pushback was coming.

Commission Chairman Bob Jones, a circuit court judge in the 27th district, said there may have been some partisan effort to influence the commissioners’ votes, but he does not think his fellow commissioners actually let that lobbying affect their votes.

“The commission was predominantly Republican, but we gave very favorable results to Democratic as well as Republican judges,” he said.

An initial vote in October was 6-3 in favor of recommending that Koch stay on the court. Clem has said he was one of those voting against.

Koch, onetime legal adviser to then-Gov. Lamar Alexander, announced in December he would leave the high court in July to become dean of the Nashville School of Law. He says his decision to leave the court had nothing to do with the partisan behind-the-scenes maneuvering indicated in Clem’s email.

Clem said he did not let the pushback affect his vote, but he claims that other members of the commission did. He would not name specific members, but said, “It was clear the majority of the commission was not going to criticize Koch. They did last time and got their hands slapped.”

In 2006, when Koch was on the Appeals Court, the commission initially voted against recommending that he be retained, but that recommendation was reversed in the final vote. Such vote changes are not unheard of. The current commission changed its initial votes on two judges this January.

If the commission votes in favor of a judge, that judge will face a simple yes-no vote during the general election on whether he or she should remain in office. If the commission recommends against a judge, he or she must face a full-fledged contested election, in theory.

In reality, there has never been a contested election in the two decades the system has been in place. When the commission decides against recommending a judge stay in office, the judge simply retires and the negative evaluation never sees the light of day.

Supreme Court Rule 27 spells out the criteria the commission is supposed to use to evaluate judges. The criteria do not include any kind of political litmus test.

Tennessee Bar Association Executive Director Allan Ramsaur, who helped push for judicial evaluations when the process was being set up, said in an interview the whole process of nomination, evaluation and retention was intended to insulate judges from undue political pressure.

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