On August 3, 1996, while addressing an audience of judges and attorneys at the annual meeting of the American Bar Association, Justice John Paul Stevens of the United States Supreme Court said that a “campaign promise to ‘be tough on crime’ or to ‘enforce the death penalty’ is evidence of bias that should disqualify a candidate from sitting in criminal cases.”
Two days earlier, a Tennessee Supreme Court justice, Penny White, had been turned out of office in a statewide election, purportedly for not being “tough on crime.” During the election campaign, the governor of Tennessee had promised the citizenry that if they would vote no on whether White should be retained on the Supreme Court, he would make the death penalty a litmus test for future appointments to the Court. Fifty-five percent of voters across the state agreed with the governor’s sentiments, and White became the first and only justice in Tennessee to lose a retention election.
If White had not lost the election, she likely would still be on the Supreme Court, solidifying her reputation among jurists throughout the state. The election, however, threw her into the national spotlight; and today, as the Elvin E. Overton Distinguished Professor of Law and director of the Center for Advocacy and Dispute Resolution at the University of Tennessee, Knoxville, White has become one of the nation’s leading scholars on both judicial independence and the death penalty.
According to her opponents, White lost the election because she was opposed to the death penalty. In their campaign materials her opponents intimated that White had turned loose a man who raped and murdered a 77-year-old woman. In State v. Odom, the case that cost White her job and the only capital case she participated in while on the Supreme Court, she didn’t vote to turn loose a convicted killer. The Court, in fact, unanimously affirmed Odom’s conviction. White did vote for a rehearing of a convicted killer’s death sentence, however, as did every other appellate judge who heard the case. The only disagreement among the judges was whether the state had proved that Odom’s actions were heinous.
“At the sentencing hearing following Richard Odom’s conviction, the trial judge refused to allow Odom’s psychologist to testify,” White says. “The judge excluded the testimony because he said it was hearsay, but in Tennessee, and in most states, the expert witness opinions may be based on any information that the experts in the field rely upon, including, of course, the patient’s history. More importantly, at a capital sentencing hearing, all mitigating evidence is admissible. By excluding the psychologist’s testimony, the trial court kept the jury from hearing about potential intellectual, mental, and emotional disabilities that could militate against Odum getting the death penalty.
“The Court of Criminal Appeals unanimously reversed the sentence and remanded the case for a new sentencing hearing,” White says. “The Supreme Court reviews all capital cases, and all the justices, of course, agreed with the Court of Criminal Appeals.”
White didn’t write an opinion in the case, but she was a woman and the only justice up for election at the time. She was also one of the judges who agreed that the state had not proved that the crime was heinous. Her opponents thought she was vulnerable.
Campaign ads aired on radio and were mailed to thousands of citizens throughout the state, urging voters to oust White “since she has never voted [to uphold] the death penalty.” Actually, White had participated as a judge in only one other capital case in which the guilt of the perpetrator was at issue, and in that case she voted to uphold the death penalty. That case, however, was when she was on the Court of Criminal Appeals. Ironically, she didn’t even harbor an opinion for or against the death penalty before or during the election campaign.
White had served on the Supreme Court only two years when she was turned out of office, but her dedication, work ethic, and judgment had already earned her the praise of her fellow justices. In 1996, they had even chosen her to serve as the next chief justice, following the tenure of Chief Justice Adolfo Birch. Already the youngest justice and only the second woman to serve on the Supreme Court, she would have been both the youngest and first female chief justice.
But after the August election, White was out of work. Although her notoriety cost her an election, it fortunately won her a broad fan base across the nation. She was even the cover girl of the American Bar Association Journal. Job offers surfaced, including one at Washington and Lee University School of Law in Virginia. The position—a year-long appointment in a capital punishment clinic—was too good to pass up.
“I had tried capital cases as a trial lawyer,” White says, “and I had readily accepted that capital punishment is one of the consequences for people who do really bad things. Frankly, I hadn’t given it much more thought before I was voted off the Supreme Court. After a year in the Washington and Lee clinic, however, I was appalled at how unfairly the death penalty is applied and I wanted to do something about it.”
Working in a capital clinic in a state that has carried our more executions than any other state in the Union was a transformative experience for White; she soon became a tireless advocate for eliminating the death penalty. Today, White writes regularly on death penalty issues. She teaches judges how to try capital cases and is currently completing Tools for the Ultimate Trial, a manual for lawyers representing defendants charged with capital crimes. Ironically, the people behind the move to oust White, because they considered her “soft on the death penalty,” unwittingly propelled her into becoming one of the nation’s influential anti-death-penalty advocates.
Although White’s ouster from the Supreme Court did not immediately change her opinion about capital punishment, it did intensify her interest in judicial independence. White had always known that judges were expected to be unbiased and independent—after all, she had served as a judge herself—but she hadn’t realized the extent to which politics could strangle judicial decision making.
One of her first acts after leaving office was to write an article about judicial independence for the Memphis Law Review. In the article White argues that judicial independence is “the backbone of American democracy.” After outlining historic examples of attempts to interfere with judicial decision making—for instance, Teddy Roosevelt’s Progressive Party platform in 1912, which advocated recalling judges and overruling judicial opinions by popular vote, and Franklin Roosevelt’s Court-packing plan, which would permit the president to appoint additional justices who supported his legislative agenda—White says that “those who wish for judges to rule based on majority public opinion have never been in the minority, have never been female, have never been Hispanic, have never been Jewish.”
White continues to be an outspoken critic of those who threaten judicial independence. In a 2009 article in Dicta, the monthly magazine of the Knoxville Bar Association, White argues for the retention of Tennessee’s system of appointing judges to the state appellate courts based on merit rather than popular vote. “In states where Supreme Court justices are elected by popular vote,” she says, “the cost of running for office can approach $10 million, and the justices become indebted to the special interest groups that pay the campaign bills.”
Moreover, incumbents are more likely to be subjected to the kind of tactics that unseated White. White notes, for example, that in a 2008 political election in Wisconsin, “a state Supreme Court justice’s opponent falsely accused him of ‘freeing a rapist,’ a man he had successfully defended as a public defender decades earlier.”
Even more disturbing to White than this kind of political grandstanding, however, are concerted efforts to undermine judicial fairness and impartiality.
“Not only are special interest groups pushing their platforms by financing the elections of like-minded judges,” White says, “they are also ensuring that those judges, once elected, rule consistently with their agendas.”
White points to the case of Caperton v. A.T. Massey Coal Co. as an example of the stakes at issue when questions are raised about an impartial judiciary. A little more than a decade ago in West Virginia, Caperton won a $50 million lawsuit against Massey over a coal contract. Massey appealed. During the appeal, Massey’s CEO pumped $3 million into the West Virginia Supreme Court race, and his investment helped unseat the incumbent Democrat. When the Caperton case reached the state Supreme Court, the new justice, Brent Benjamin, refused to recuse himself and cast the deciding vote to reverse the $50 million verdict.
The U.S. Supreme Court heard the case on March 3, 2009, and issued an opinion in June. Writing for the 5-4 majority, Justice Kennedy said that Justice Benjamin’s failure to recuse himself was a violation of the fourteenth amendment to the United States Constitution.
“The case reads like a John Grisham novel,” White says. “Caperton is one of the most important decisions of the Court this year and may eventually affect how states choose judges.”
The Harvard Law Review asked White to write an article about the Caperton case. White agreed and the article was published in November 2009. “It’s hard enough to get published in the Harvard Law Review,” says Doug Blaze, the dean of the University of Tennessee Law School. “To have Harvard ask Penny to write for them is a huge honor that speaks well to her national reputation.”
“If democracy is to survive in this country,” White says, “judges cannot be factoring in their campaign strategies for the next election when they are making judicial decisions, about the death penalty or any other issue that affects the lives of the American people.”
As if to prove White’s point, politicians, hoping to convince voters in 2009 to change the way Tennessee Supreme Court justices are selected, criticized Janice Holder, Tennessee’s current chief justice, for supporting the appointment of judges based on merit. Justice Holder was accused of violating Tennessee’s Code of Judicial Conduct even though the code recognizes that judges are “in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice” and encourages judges to speak out on such matters.
White is not surprised about the treatment Justice Holder received and is pleased the voters agreed with Justice Holder’s position. As White learned in 1996, truth is often the first victim in a political campaign.
As for the candidate, White can testify that the repercussions last long after the election is over. White still occasionally grimaces, especially in her hometown of Johnson City, when she encounters an acquaintance who remembers the campaign that unseated her and still believes its message.
When asked if she misses working on the Supreme Court, White is wistful. “There’s no doubt it was a great job,” she says, “but I have a great job today, too; and, more importantly, I have the freedom and independence to stand up for what I believe in, much more so than when I was on the Supreme Court. That’s worth a great deal.”
Top photo: Penny White