A few days ago on this blog, our ever growing readership was relieved to hear that our current Attorney General, Paul Summers, will not be seeking a spot on the Tennessee Supreme Court which will be vacated on August 31st. This was indeed welcome news for those of us who stand up against the arbitrary, racist, costly, and inhumane policy of state sanctioned killing.

However, as uplifting as this news was, a recent piece in the Tennessean is equally disheartening. It appears that Governor Phil Bredesen is focusing his questioning of judicial applicants on the death penalty, asking if they can carry out the state’s current law. Given that Justice Adolpho Birch is being replaced, this is a very sad development indeed.

Justice Birch refused to sanction the state’s death penalty because, with no proportionality review system in place, he believed that such a system was unfair. Justice Birch, to my knowledge, did not assert that the death penalty is inherently unconstitutional or immoral, but he, a highly trained and accomplished legal scholar, asserted that our current system fails to meet our standard of equal justice under the law. It seems that Phil Bredesen, who has referred to Justice Birch as a “trailblazer,” does not care about this, and may, in fact, be attempting to avoid placing another Adolpho Birch on the bench.

This is a terrific loss to the people of Tennessee. About a third of the population does not support the death penalty, and to exclude this group from representation on the Supreme Court, much as they are excluded from juries, is to turn our backs on the idea of representative government. Moreover, it seems that Governor Bredesen does not want to acknowledge what Justice Birch and thousands of others already know, that the Tennessee death penalty system is fundamentally flawed and requires, at the very least, major reform if it ever hopes to fulfill its function.

At a time when the state executes Sedley Alley without testing DNA evidence that could exonerate him, and sets dates of execution for Paul Reid, Daryl Holton, and Stephen Hugueley when serious questions about their mental competency exist, we need principled judges like Adolpho Birch on the state’s highest court. Making supporting the death penalty perhaps the central issue for applicants cuts Tennesseans off from a group of wonderful and capable judges that would be a credit to our state.

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