Judging the Judges

When voting for Supreme Court judge, nobody in Tennessee has information on our judicial candidates, at least with respect to the way they have voted on cases and their judicial philosophy. The Tennessee Bar Association essentially won’t allow it.

A lot of people have asked us if we have information about the two Supreme Court Judges who are on the ballot for a “yes” or “no” retention vote. Here is what you need to know … and the only thing you really can know about these “candidates.”

First, we do not have information on judicial candidates, at least with respect to the way they have voted on cases and their judicial philosophy. Nobody does.

It is not for lack of effort, however. We tried to do surveys of the judges in 2006, and none of them would answer. Since then, the Tennessee Bar Association has essentially asked judges to take a pledge not to complete any surveys. At some point FACT hopes to assemble of team of lawyers concerned about the true lack of information voters have who will help us do our own evaluation of the opinions these judges sign onto and evaluate them ourselves. Until then, we have no good information to give you on these candidates. But, that being said, there are a few things you might want to consider as you decide how to vote.

How We ‘Elect’ Judges in Tennessee

First, the state Constitution says, “the Judges of the Supreme Court shall be elected by the qualified voters of the state.” Regular contested elections were held until the early 1970s, when the legislature passed a process by which potential Judges would be recommended to the Governor by an appointed panel of people. The Governor would then pick someone to go on the Court. At the time of the next general election, that person would be up for a “yes” or “no” retention vote. Except for one rare possibility, the legislature forbids anyone from getting enough signatures on a petition and running for Supreme Court Judges. There was a lawsuit over the constitutionality of this process, but a special panel of fill-in Supreme Court judges picked by the Governor at the time ruled that the appointment-retention process satisfied the Constitutional requirement that Judges be elected.

Second, the two Supreme Court judges up for retention were part of two different panels of three names provided to the Governor by an appointment panel composed of persons recommended by various Bar Association organizations. The Governor then appointed from those lists of three names, the two persons on the ballot.

What Will Your Vote Communicate?

So, if you want to make a “negative” statement about things like judicial activism, Tennessee’s method of electing Supreme Court judges, etc, then the best way to make that statement is to vote “no.”

If you approve of the current system and current judicial philosophy that prevails in this country (and state), then the best way to communicate that is to vote “yes.” It would be my opinion that not to vote would leave the Judges, Governor and legislature in a position of not knowing why there were fewer people voting in the judicial elections compared to gubernatorial, congressional or state legislative races. Not to vote will leave them wondering if the low vote totals signify voter apathy or an unwillingness to vote for someone you don’t know anything about.

Does Early Voting Need Changing?

Early voting costs you money—and more.

The Secretary of State announced on Monday that more than half a million Tennesseans voted early this year—setting a new record for a state primary election. That is good news. But is early voting all good news?

The answer to that depends on how much you’re willing to pay for that right to vote over a period of up to 21 days before Election Day. That’s right: Early voting costs you money.

It Costs You Money

First, it costs you money as a taxpayer. This is because the various local election commissions must pay for extra staff to cover the cost of such a long voting period. For example, if we’re concerned about spending by local government and risk of increased sales and property taxes to pay for it, then cutting the early voting period down to one week, still a lot of time, would cut these costs at least in half.

Second, it cost everyone who is willing to help finance a candidate’s campaign. When I ran for the state Senate back in 1994, there was only Election Day. As a challenger to an incumbent, it allowed me to focus my most expensive expenses (radio and TV) toward that one day. A week, maybe two, of advertising by these expensive means was all that was needed. But today, candidates have to advertise at a minimum of six or seven weeks because they have to be “on air” at least two weeks before early voting starts. This dramatically increases what candidates have to spend.

You might say, “Well, they would spend the same amount anyway because to increase name recognition they are going to start advertising months out.” Well, that might be true with respect to state-wide races. But it is sure a lot less true of state legislative races now costing hundreds of thousands of dollars, far more than prior to the advent of early voting.

But it might even save money on state-wide races. Consider. State-wide candidates didn’t always run expensive advertising for 4 to 6 months. And maybe some of it was because without early voting starting almost a month out from Election Day, they had a whole month less of advertising they had to do. With television so expensive, imagine how much money might still be in the pockets of candidate supporters if they were not having to pay for an extra month of radio and TV.

It May Cost More Than Money

But there may be another cost, at least at the state legislative level. A long early voting period hurts challengers to incumbents. There might be many great public servants out there, but they never consider running because they aren’t connected to the wealthy or able to self-fund. For example, I don’t know that I could have won in 1994 had there been early voting. I could not have raised the money to run television or radio for six weeks. Two weeks was manageable. But had there been early voting and had I not been able to advertise at least two weeks before early voting and all during early voting, the incumbent would have been getting all the votes during early voting, votes I could have never made up on Election Day.

While some might rejoice to think early voting could have kept me out of the state Senate, let’s not be short-sighted—the same could be true of any challenger to an incumbent.

Two weeks of early voting is ideal for incumbents because they have a far greater ability to raise money to pay for expensive advertising and take advantage of a challenger’s lack of name recognition during early voting. We might have a better government if it weren’t so geared to incumbents and those who know the wealthy or can self-fund. Early voting is great, but it also has costs we can’t ignore.

When Being Right Is Not Enough

I just attended a conference for lawyers who strategically seek to defend the First Amendment rights of Christians and heard the statement, “Stupid for Jesus is still stupid.” In the context of public office, a candidate who loves God and has all the “right values” is not enough. More is needed.

What is needed depends on the office being sought. Different skill sets are needed for different political offices. And without these skills, all the right intentions may not matter. By analogy, if you’re looking for someone to redecorate your home, don’t necessarily call a preacher. (Guys, if you don’t get the analogy, ask a woman!)

That doesn’t mean that I don’t care what a candidate’s religious beliefs are and his or her worldview. I do. “As a man thinks in his heart, so is he.” Eventually a person’s core beliefs will influence his or her future actions. And this is important since, before a term is over, who knows what issues the candidate might have to vote on that never occurred to anyone to talk about during the campaign season. That’s why we asked a lot of personal questions of the gubernatorial candidates who had raised a threshold of $1 million and were willing to talk with us on camera. We asked on camera so that you could see their reactions, not just read their words.

So what else do I look for that relates to the job the person is running for?


1. Budgetary/Financial Skills. Executive posts, like Governor, require a couple of different abilities. But, to be honest, first and foremost is the ability to deal with budgeting and finances. A governor is primarily the architect of the state budget. So knowing how to budget and handle money and make decisions about priorities is critical. And don’t expect a person who has not handled his own personal finances or finances in their other life experiences well (business or other political office) to magically become a great manager of your tax dollars as Governor.

But this does not mean that the Governor’s values and priorities don’t matter. Remember that the budget must pay for legislation that is passed. The cost of that legislation really needs to go in the Governor’s proposed budget because a proposed gubernatorial budget can be hard for legislators to amend. So, for example, if you want to see the Governor crack down on drunk drivers, he better share that value and priority because it will cost money for incarceration. And if the cost of incarceration is not included in the governor’s budget to begin with, the legislation will most likely die for lack of funding to cover the cost.

However, another caveat regarding values vis-à-vis budgetary prowess: Remember, when it comes to value issues, the Governor can be overridden by a simple majority of both the House and Senate. For example, Governor Bredesen’s vetoes on gun issues were overridden a couple of times the last two years. But that also does not mean the Governor’s values don’t matter. A Governor fully on-board with social issues can sure help influence public opinion if willing to speak up. Governors have influence, so you do need to know what things are of such importance to them that they may use it to make a difference.

2. Delegation. Another important skill set a Governor needs is the ability to delegate. The Governor cannot be fully informed on every decision that takes place in state government before it is made. He can’t evaluate every expenditure. State government is way too big. Control freaks will lose their minds.

But this brings up another important issue, namely, whom will they surround themselves with? What kind of people will have their ear? We’ve talked about this before. In our candid video interviews with the gubernatorial candidates, we asked questions to try to get at this. Hope you’ll watch at least the answers to those questions (by the way, each question asked can be watched individually!).


1. People Skills. Legislators need to be able to get along with other people, or they won’t get much done. But that doesn’t mean they have to be consistent compromisers. To my way of thinking and based on my experience, a principled politician may not always be buddy-buddy with everyone, but he is generally respected. Lobbyists and others know that if a politician is principled and consistent, they might have a chance to convince him or her of the merits of their position. And they know how to approach the politician. For example, lobbyist knew to bring me written information, and if it was fairly brief, they’d just let me read before they tried to explain anything. Flip-floppers and ready compromisers, on the other hand, can get folks mad because they won’t “flip” when you want them to, but they “flipped” for someone else. Consistency in principle and approach is a plus. (The same skill set is good for a Governor, but he holds a lot more power, and it’s easy for a Governor to fall into the trap abusing it for his own purposes.)

2. Temperament. But legislators need to understand that they are just one vote. Sometime hard-driving executive types are used to being able to determine what needs to be done, and they get it done because they “call the shots.” Some legislators have more influence than others, but no one legislator (other than possibly a Speaker) can bend everyone to their way of thinking. During the income tax wars eight years ago, people just didn’t understand that a pro-income tax legislator had just as much right to vote for budget cuts as I did the right to vote for them. I couldn’t just impose my will on everyone. This fact raises another point.

3. Humility. This one seems contradictory—how can you be humble and think everyone needs to vote for you because you’re better than someone else? Good point, but my point here is that legislators need to know how to lose and go on. Grudge carriers are not good. You lose a bill; you go on. The Good Book says anger works not the righteousness of God. Sore losers aren’t so good either. And in those moments where a legislator can let passion and personality get the best of them, having a politician willing and able to say, “I’m sorry” is important. I admit. I had to do that a few times, even publicly, but every time I had people I didn’t even know thank me for being willing to say so. Politicians need to remember that folks can get mad when they aren’t perfect, but they really get mad with politicians who think they are.

4. Discernment. Legislators (and Governors) also need to be perceptive and discerning and know how to size up a person or organization. There is a lot of stuff always going on under surface that the public doesn’t see and often hidden agendas. Lack of perception can have a legislators stepping into something they should have avoided.

5. Courage. Lastly, a willingness to say “no” is also a valuable ability (same is true for Governor). Almost every issue has at least two sides, and legislators who can’t say “no” will get themselves in trouble and often along with the citizens they represent. Can anyone say “federal deficit?” You don’t want your legislator’s vote to depend on who spoke with him or her last before going on the floor to vote.

So before you vote, make sure the candidate and the office are a good fit. If the shoe doesn’t fit, you may be getting an ugly stepsister instead of Cinderella!

Lend Me Your Ears

No one knows it all. And the candidate who thinks he knows it all doesn’t know how little he knows. Avoid that candidate. But most candidates are not that arrogant (or at least not openly so). So, who will have a candidate’s ear?

This is an important question. The old saying, “Bad company corrupts good morals,” is as true for politicians as it is for your teenager who is hanging out with the wrong crowd. So what should we look for to find out who will have influence?

What’s in a Name?

That’s a famous line from Shakespeare. Had Shakespeare been talking about political campaigns, he might have been asking how important is an endorsement really? Endorsements may be important, but don’t follow them blindly.

Don’t Assume

Always keep in mind that organizations that endorse candidates usually have a limited agenda. So be careful of “extrapolation.” For example, someone may be endorsed by a pro-life organization, but don’t assume that such a candidate must be conservative and will probably stand strong in defending marriage or opposing things like the homosexual agenda or obscenity.

Do They Know That of Which They Speak?

Endorsements by individuals, including celebrities and ministers, don’t in themselves mean much to me. It’s not that I have something against celebrities and ministers, but unless they really know the candidate, all they know is, at best, what they may have gleaned from a one- or two-hour interview. Now that is better than basing an endorsement off a speech, but the real question is whether the “interviewer” really knew the candidate and politics well enough to know what to ask or to evaluate the reasonableness of the answer, such as when a candidate makes a promise that can’t be kept.

When it comes to state offices, the answer is probably not. I’ve only seen one person of celebrity status (meaning made a movie, was or is on a TV show, or has written, sung or produced a song) on the Hill talking to legislators and observing the process. And apart from the Minister of the Day who may pray to open a session or those who attend our Ministers Day on the Hill event, I assure you there aren’t many ministers who ever come to the Hill to speak to a legislator or to consistently observe the process.

The point is this: It’s not that hard for a candidate to “put on a show” for an hour or two during an interview and say all kinds of good things. Good candidates know their audience and know what kind of things that audience wants to hear. I understand that, and that’s fine. But no matter how good a judge of character a person thinks he is, actions do speak louder than our words. For example, if the candidate was an incumbent, did the person making the endorsement really know how the incumbent has voted? If not, then their endorsement isn’t based on all the facts.

I have seen people endorse a candidate in this election cycle for having certain values that I know that candidate hasn’t adhered to faithfully. I’ve seen candidates make promises I know they will have a very hard time keeping, if at all. I’ve seen a candidate talk about standing strong on an issue that isn’t, in fact, even an issue in Tennessee. I’ve often wondered if the “endorsers” would have made their endorsement if they had known those things. Maybe they did know, but unless they really know their politics, they probably didn’t.

Second, and in my opinion more important than celebrity and ministerial endorsements is finding out who will have the candidate’s ear. It’s generally one of two kinds of people. First, it is their close personal friends—to whom they may feel accountable on a personal level. In this regard, you really need to watch our interviews with the gubernatorial candidates. The second group of people are those who finance their campaign.

Taking the latter group first, it can be helpful look at whom a candidate is getting his or her money from, whether running for a state office or a federal office. But keep in mind that politics makes strange bedfellows.

For example, I had an avowed atheist support me in my first election because he agreed with my policy positions and liked the incumbent less than me. I had a personal friend get all over me because of the person’s support. Another example is U.S. Senator Bob Corker, who caught flack because a liberal pro-abortion doctor supported him, yet the Senator has been true to the pro-life values he campaigned on.

So individual contributions are worth looking at. Just keep in mind that a contribution here and there from someone with values different from the candidate’s may not mean much. On the other hand, a pattern of contributions from those with different values may indicate that those people think they will have influence.

While contributors can be deceiving when it comes to knowing who will have the candidate’s ear, candidates generally don’t have people on their fundraising team who don’t share their values. The values of those people can be a good clue as to what a candidate really values.

And, if PAC’s are giving a candidate money, then most likely that candidate will support that PAC’s issues. Here’s a situation in the last session of the Tennessee state legislature proving my point about the influence of money.

But the people who are in a candidate’s inner circle will have the most influence on him or her. As a state senator, I knew lots of people, but they weren’t my confidants. I did try to listen to everyone because I never knew who might provide a pearl of wisdom. However, when push came to shove, there were only a handful of people to whom I turned to help me sort through all the information and issues that needed to be considered.

This information can be hard to find. But at least when it comes to the gubernatorial candidates who have raised $1 million or more, we hope our interviews with them will provide you some insight in that regard. We hope you’ll check out our gubernatorial interviews to see the questions we asked and watch the candidates’ answers.

Un-Spinning the ‘Sin’ of Spin

It’s telling that we have a television news channel with a show called The No Spin Zone. News is supposed to provide facts. But in politics everyone (it seems) tries to put “their spin” on the facts. And when it comes to campaign promises, one really has to watch for “the spin.” We’ve almost come to expect it. Here are some thoughts on the “sin” of spin and cutting through it.

“Spin” to me is an effort to make something look different (better or worse) from what it might appear to the average person who is looking at what happened. It is not the same thing as giving a constituent more information by which he or she can better evaluate what took place. That’s not what is meant by spin. Spin is generally more in the genre of distortion, deception or manipulation. And sometimes it may just be outright lying.

In the old days we called things like deceit, manipulation and lying sins. And while two people can see something in different ways, the real crux of issue surrounding “spin” is the matter of integrity. Integrity in elected officials matters. A candidate might espouse the right values, but without the integrity to follow through with votes consistent with those values, it doesn’t matter much what they say their values are. Our actions reveal what we really believe.

In a way, the issue of integrity goes back to my first article on the subject of evaluating candidates. Sometimes the only one who will ever know the truth is God, and a candidate who doesn’t understand there is an all-knowing Judge to whom he or she must give an account is more likely compromise on integrity.

Cutting through the Spin

So, how do we cut through the spin to find the honest politician? It’s hard, particularly for people who are not familiar with the political process. That’s why a candidate’s responses to voter guide efforts by organizations that share your values are important. Those voter guides may raise issues about which the typical voter is not aware and about which no candidate is talking.

Using Voter Guides Effectively

First, voter guides can give you information by which to evaluate the integrity of a candidate’s campaign rhetoric. FACT’s Voter Guide and personal interviews with the leading gubernatorial candidates will be on our website beginning July 16th. Often times a survey question relates to legislation that has been voted on or been filed. FACT’s voter guide makes reference to existing legislation if such has been filed. In those cases, you can look up how the candidate voted on that legislation and see if the vote and survey answer are consistent. Where there is no vote by which a comparison can be made, compare the survey answers to the candidate’s campaign rhetoric and publications. If there are inconsistencies, take note of that fact.

Also, while some candidates won’t answer voter guide questionnaires from any type of organization, if possible find out if a candidate has answered any organization’s voter guide survey. If so and if a candidate espouses political positions consistent with an organization’s values but won’t answer that organization’s survey, then take note. The candidate may be avoiding putting into writing what he says he believes.

Parenthetically, one way to find out about a candidate’s record is to read the information from other candidates for the same office. But if a candidate is criticizing a fellow candidate’s position, see if the criticizing candidate actually cites you to the legislation at issue. If not, the criticism may lack substance, in which case the critic’s own integrity may need to be questioned.

A Promise That Can’t Be Kept

Second, watch out for subtle contradictions. For example, watch out for candidates who talk about smaller government and lower taxes while also talking about new programs they want to initiate or agencies or organizations for which they want to increase funding. In my opinion such talk may lack integrity because honestly:

  • at the state level, the state has no money for anything “new” unless collections begin to go up or the candidate is willing to cut some existing program. So, if they promise smaller government and new programs, ask them where they will get the money—what they are going to cut? If they can’t tell you, they haven’t thought it out.
  • at the federal level, it is fiscally broke, thanks to the Democratic and Republican parties who have taken turns driving us into bankruptcy. Enough said about a congressional candidate who wants less government, lower taxes, and less debt and also proposes to start something new.

A Promise That Wasn’t Kept

Third, has an incumbent made a campaign promise in this cycle or in the past that has not been kept? If so, did the incumbent try to explain it away? Or did the incumbent have the integrity to admit either that the promise never should have been made (Bible scholars, consider Jephthah) or that breaking the promise was wrong.

Rationalization for why it was “okay” to break a promise is a quality that can well (and most likely will) carry over into other issues at other times. We can rationalize about anything if we put our mind to it. Integrity and humility are most evident when a person is willing to admit he or she was wrong. No candidate is perfect. Pretending that one is perfect simply means the person is more imperfect than he or she thinks.

Undermining Their Stated Values

Fourth, will the candidate commit to vote for a Speaker that holds views consistent with the ones the candidate espouses? Ask a candidate if there are any values a candidate for Speaker must hold or cannot hold in order to get your candidate’s vote for Speaker.

In other words, if being pro-life (or pro-Second Amendment) is very important to you, a candidate who says he or she is pro-life (or pro-Second Amendment) but votes for a Speaker who is not pro-life (or pro-Second Amendment) will have just killed most, if not all, pro-life (or pro-Second Amendment) legislation that will be filed.

Why? Because the committees that vote on legislation will reflect the values of the Speaker who appoints the committees. For example, regarding funding for abortion under “Obama Care,” my recollection is that, in the end, Nancy Pelosi won the day, not Congressman Bart Stupak and his so-called “pro-life” coalition. The same kind of thing happened in the Tennessee state House under former Speaker Jimmy Naifeh with respect to pro-life legislation.

Have They Walked the Talk?

Last but not least, is a candidate’s talk consistent with their personal walk—do they walk the talk? If the candidate espouses pro-family values, do they live out pro-family values? It makes a difference. For example:

  • Are any “indiscretions”—DUI’s drug use, infidelity, etc.—far enough behind them that a sustained course of conduct since then has made it clear that what was in the past is in the past?
  • If a candidate has disclosed his or her financial records, do those records reflect a consistency with what the candidate says he or she values? Maybe this is just me, but if a candidate professes to be a follower of Jesus, and the information is available, how does that candidate’s giving compare to his or her income? Many candidates espouse “compassionate conservatism.” Many profess the need for civil government to do less and private associations to do more in caring for the disadvantaged. All that is fine, but does the charitable giving of those candidates reflect a willingness to put their money where their mouth is? Someone once said, “If you look at where a person’s treasure is, there his or her heart will be also.”
  • What nonpolitical activities is the candidate engaged in and for how long? And is there anything to indicate that those activities reflect a decision motivated by the heart or by a desire to firm up their political base? For example, if a candidate says he is pro-life, has he been involved with a local pregnancy resource center, adoption agency, or abstinence education ministry and, if so, did the involvement begin prior to being in politics or deciding to run for office? Candidates can’t be involved in every kind of activity, but the ones they are involved in and for the longest will be a clue to their real values.

In other words, don’t believe the lie that a person without integrity in his or her personal life will exhibit integrity in public life. If anything, elected office at the very least tempts one toward rationalization, compromise, and even outright dishonesty. People don’t often (ever?) get more honest once they get into politics. Remember the Tennessee Waltz sting anyone?

Again, having the right policy values is critical. Without the integrity to follow through when it’s time to vote, a candidate’s campaign values may not matter.