Worrick Robinson’s endorsement service is up and running again in his front yard.
The criminal defense attorney is asked every eight years about who he thinks would make a good judge by friends, neighbors and colleagues. So he plants his answers in the grass.
“I tell people that this is pretty simple,” Robinson said. “I put signs in my yard of judges that I hope to see elected. And the people that drive by my house, they know I’m an attorney, they know I spend time in court. And while they might not agree with one or so, the likelihood that they know everybody [in the race] is very, very, very marginal. So I put signs in my yard, so if people don’t want to call me, they’ll have an idea of who I’m supporting.”
Former U.S. Attorney Ed Yarborough said he’s been pulled aside in church and asked whom to support, mirroring conversations that are happening with most of the attorneys in the city right now. Charles Grant, a veteran litigator at Baker Donelson, said even other attorneys who don’t spend much time in a courtroom ask him for recommendations.
Those endorsements often carry extra weight because judicial races are unique in that voters make choices based on character and reputation instead of policy positions. Whether a candidate is for higher taxes or against them doesn’t matter, because general sessions judges can’t set property taxes or roll back any fees. Circuit court candidates can do little more than promise to be fair to all parties if they are elected. Attorneys like Robinson, Yarborough and Grant find people leaning on their judgment because they are some of the few who interact with judges — and the people who want to become judges — on a regular basis.
So, how should you pick a judge?
The Banner talked with more than two dozen attorneys of differing backgrounds and specializations to find out what makes a good jurist and what voters should look for in judicial candidates.
What Are Voters Selecting?
Tennessee voters determine four types of judges:
- A chancery court judge presides over lawsuits, complex business litigation, administrative law disputes and generally handles suits against state governmental agencies. Recent high-profile cases involving the Davidson County Election Commission and Metro Government were heard here, as well as lawsuits involving redistricting.
- A circuit court judge in Davidson County is a civil judge who mainly hears lawsuits and civil appeals from general sessions courts. Probate and divorce matters are also part of circuit court.
- A criminal court judge hears felony criminal cases as well as criminal appeals from general sessions.
- A general sessions judge is at the lowest rung on the judicial ladder and hear both limited civil and criminal cases. Misdemeanors, city fines, creditor debt collections, landlord disputes, orders of protection, mental health committals and code violations all are handled in these courts.
These are four very different roles.
A general sessions judge typically will handle 10 times the volume of a circuit or criminal court judge. In 2021, 24,613 civil cases were filed in general sessions courts versus 1,881 in circuit courts. Sessions judges issued 3,137 orders of protection, 8,519 emergency committals and 16,885 civil warrants. As much as being a judge, sitting on the general sessions bench means being a bureaucrat who is effective at moving cases through the system in an orderly manner, starting court on time and being decisive. While a chancery court judge may take weeks or months to issue a ruling, a general sessions judge must be decisive in the face of a mountain of work.
Chancery court, by contrast, can be the deep end of the judicial pool. Some complex cases may take years to resolve and touch on arcane areas of law. A sample of one week’s filings in late March included the town of Mason suing the state comptroller’s office, a contract dispute over the construction of a house and Metro Government seeking delinquent property taxes.
Circuit court judges have a variety of backgrounds. Amanda McClendon was a Metro Councilmember before being elected in 2006, Philip Smith was a family law practitioner before his appointment in 2009, and Joe Binkley was a sole practitioner who handled a lot of workers’ compensation and personal injury cases before being appointed in 2008.
On the criminal court bench, four of the current judges are former prosecutors and the other two are former criminal defense attorneys. Cheryl Blackburn, who presides over the Division III mental health court, held both private and state mental health positions, as well.
What Makes a Good Judge?
In conversations with a broad range of lawyers, several common themes emerged about what makes a good judge.
Experience. Most respondents say they would like to see candidates have at least 10 years’ experience practicing the law before donning a robe. This falls roughly in line with the American Bar Association’s preference for 12 years’ experience before becoming a federal judge. And preferably, those candidates should have relevant experience for the position they are seeking, as well as subject matter expertise. For example, how many trials has a candidate done before? Has a candidate seeking a criminal court judgeship actually defended or prosecuted someone? Has someone seeking a circuit court position filed suits or represented defendants before? And because most cases don’t actually make it to trial, how many pretrial motions have they filed on behalf of a client?
But many caution that experience is a guideline, not an absolute. Margaret Behm, a longtime partner at Dodson Parker Behm & Capparella, has participated in more than 100 judicial selections over the years and served on the state judicial selection committee for a decade. She said if someone is really strong in other areas, a lack of experience isn’t crucial.
“Julia Gibbons was just Lamar Alexander’s legal counsel when he appointed her to a circuit position, and she’s risen all the way to the Sixth Circuit,” Behm said. “She’s been a fantastic judge and gotten quite a few honors. She only had five years’ experience.”
Several respondents also say experience outside the legal profession was valuable to give the candidate perspective.
Intellect. This seems self-explanatory, but as Yarborough puts it, “You don’t want a dummy on the bench.”
Integrity. Parties who enter a courtroom have to believe that a judge will act fairly throughout the course of their case. For many respondents, integrity includes not only fairness, but the appearance of fairness to preserve public trust in the courts. “One thing I look at is how judges handle recusals,” says one attorney. “Do they take it personally if a party asks them to recuse themselves from a case? Will they punish my client for asking?”
Temperament. A judge will interact with a multitude of parties in a given day, from attorneys trying cases and their clients to court officers and clerks to members of the public in their courtrooms. How do they treat people? This is especially true in general sessions courts, where a large number of defendants represent themselves. How does a judge handle someone who may be unfamiliar with the court’s rules, but is required to appear before them? As former federal judge Kevin Sharp says, “Can they handle these cases and deal with the different parties? You’re going to deal with some pro se. You’re going to deal with lawyers of a lot of different abilities and personalities.”
Work ethic. Do the judges — or candidates for judge — act expeditiously? Do they make decisions and file in a timely manner? Do they do the research on their own? In a criminal case, are they decisive about making some of the many evidentiary decisions? If a judge takes months to render a decision in a civil case, for example, it may affect the financial well-being of the parties involved. If a judge doesn’t begin a docket full of cases on schedule, it may affect hundreds of defendants, attorneys and staff.
“If a judge doesn’t have a work ethic, none of the other stuff matters,” Sharp said.
What Do We Know About the Candidates?
More than most elections, judicial races are what experts refer to as “low-information elections.” There are very few metrics that help voters understand judicial performance. If you examine the criminal courts bench in Nashville, for example, there are statistics available about how many cases each judge handled, how many remained open or closed and which cases were felonies or misdemeanors. But whether or not a case was decided properly? That means sitting in court and watching the judges and lawyers work.
“It is much more common for voters to have almost no information about judges before they go to vote on them,” said Douglas Keith, a counsel in the Brennan Center’s Democracy Program. “There are really limited resources to find out more information. There might be a local bar association, or a voter-minded group that publishes short questions and answers, or biographies. And even those are fairly standard in the responses you can expect and don’t give voters a great opportunity to really learn about the differences between judges.”
One of the biggest problems leading to this low-information environment is a decline in the number of journalists. Since the close of the original Nashville Banner in 1998, The Tennessean’s newsroom has shrunk by two-thirds. Nationally, according to the Pew Foundation, there are half as many newspaper newsroom jobs today as in 2008. With those cuts has come the loss of regular courts coverage, something more noticeable with every judicial election cycle.
“The public pays for those courts, and the public deserves to see that justice is done,” said Sandra Roberts, former editorial page editor for The Tennessean. “And today, there’s really no way of knowing how the judge treats the lawyers, how the judge treats the defendants, if the judge shows up on time or if the judge is calling in a substitute, which many have done. It’s been a bad problem in Nashville.”
Without regular coverage, it’s harder for voters to make an informed decision, Yarborough says.
“You’re losing the flavor of what’s going on in the courthouse,” he said. “In other words, are the right cases being prosecuted? Well, if they’re being defended, well, who’s doing that? Now, nobody knows the top 40 lawyers. The ‘Best of the Bar’ and so on is based on who goes to the right cocktail party. It has nothing to do with the quality of work in the courthouse. And that really deprives the public of the knowledge that they should have in order to elect the proper people. And, you know, a civic-minded citizen ought to know what’s going on in the courthouse.”
Outside of a few high-profile trials, there has been very little coverage of judicial conduct. For example, a special prosecutor has been investigating Judge Kelvin Jones for a year, following admissions from Jones’ divorce trial that he hid money from creditors and broke into his wife’s phone to access her email. The news has merited only two local news stories of any depth.
So, what tools do voters have available to them? The Nashville Bar Association’s poll of members ranks every candidate in the contested judicial primaries on a five-point scale: highly recommend, recommend, do not recommend, no opinion, did not know candidate. With more than 500 responses, it provides voters with some measure of how Nashville lawyers see the field. It’s not perfect, but it remains one of the few surveys available of people who work in Nashville’s courts.
Both the Banner and The Tennessean have asked candidates to respond to questionnaires, mainly about biographical and career information. The Banner surveys can be found online. The Tennessean surveys can as well. Additionally, the nonprofit Please Vote Nashville is publishing a questionnaire that you can access beginning April 11 at pleasevotenashville.org.
But by and large, endorsements are one of the few remaining tools available to voters. Jerry Maynard, who served multiple terms on the Metro Council, explains why they have added value in judicial elections.
“Voters will be voting on character and reputation,” Maynard said. “So when you look at certain people who are running for judge, these candidates count more on [members of the] community in which they live and serve to then endorse them to other voters who do not know the candidate. Endorsements in the judge races are more important and carry more value than, let’s say, other state legislative races or Metro Council races. And the reason is because we don’t know anything about them. So then a lot of voters will say, ‘Well, if you like them or you like her, she has good character, I’ll vote for that particular candidate.’ Because we do not have access to that information. So endorsements really matter in these judge races. And reputation in the community really matters because most incumbents get reelected.”
Which is why Worrick Robinson’s front yard doubles as a bit of democratic service this spring.
Disclosure: Margaret Behm has donated to the Nashville Banner. Financial supporters play no role in the Banner’s journalism.