Penny J. White

Penny J. White (born May 3, 1956) is an American attorney and former judge who is on the faculty of the University of Tennessee College of Law. She was a Tennessee circuit court judge, a member of the Tennessee Court of Criminal Appeals, and a justice of the Tennessee Supreme Court before being removed from office in a judicial retention election.^[1][2] She is the only Tennessee judge ever to lose a judicial retention election under the Tennessee Plan.^[3][4]

Early life and education

White was born in Kingsport, Tennessee in 1956.^[5] She attended East Tennessee State University (ETSU), graduating with a B.S. degree in 1978. At ETSU she was the first female president of the Student Government Association.^[6] After graduation, she went on to study law at the University of Tennessee College of Law, where she was awarded the J.D. degree in 1981, and Georgetown University Law Center, where she was awarded a master's of law degree in 1987.^[5][7]

Legal and judicial career

White engaged in the private practice of law in Johnson City, Tennessee, from 1981 to 1983 and from 1985 to 1990. From 1983 to 1985 she served as supervising attorney and clinical instructor in the Georgetown University Law Center Criminal Justice Clinic.^[5][7]

Penny White impressed Justice Scalia and the US Supreme Court when she appeared before them at the age of 32. The New Yorker article on Scalia note: "In a 1988 speech, Justice Harry Blackmun, who retired in 1994, recalled how Scalia had grilled a lawyer named Penny White, a thirty-two-year-old solo practitioner from Johnson City, Tennessee. He “picked on her and picked on her and picked on her, and she gave it back to him,” Blackmun said. “Finally, at the end of the case we walked off, and Nino said the only thing he could say: ‘Wasn’t she good? Wasn’t she good?’ The rest of us were completely silent. We knew she was very good.”^[8]

In 1990, she won election to a judgeship in Tennessee's First Judicial Circuit. In 1992 she left the circuit judgeship when Tennessee Governor Ned McWherter appointed her to the state's Court of Criminal Appeals. She served on that court until 1994, when McWherter selected her to fill a vacancy on the Tennessee Supreme Court.^[5][7] She became the second woman ever to serve on the state's highest court.^[9]

Vote on judicial retention

White became a subject of controversy in 1996 when she voted with the court majority in the 3-2 decision in the case of State v. Odom. That June 3, 1996 decision upheld a conviction for the rape and murder of an elderly woman, but overturned a death sentence in the case on the grounds that the combination of rape with murder did not meet the requirements for the death penalty because the rape did not cause the murder to be "especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death."^[5] It was the only death penalty decision that White ever participated in as a member of the state supreme court. ^[10] In a law review article published several years later, White wrote that Tennessee law at the time of the case allowed capital punishment and that she would have voted to affirm a death sentence "that was imposed in accordance with the law."^[5]

As a recent appointee, White was the only member of the court who was subject to a retention vote in that year's election, and she was targeted for defeat by victims' rights advocates, the Tennessee Conservative Union, and death penalty proponents who opposed the decision.^[5][9] White was restrained from campaigning on her own behalf by the judicial code of ethics, but her opponents "flooded the state" with materials urging her defeat.^[5][9] One mailing urged voters to "Vote for capital punishment by voting NO on August 1 for Supreme Court Justice Penny White."^[11] She was publicly opposed by Governor Don Sundquist and U.S. Senators Bill Frist and Fred Thompson, all Republicans.^[5][9][12] As a result of the campaign against her, the "no" vote prevailed in the August 1, 1996, retention election, causing her to be removed from the court.^[10] Only 19 percent of the state's voters voted in White's retention election.^[13] Sundquist subsequently appointed Janice Holder to fill the seat she vacated.^[5]

The defeat of White's judicial retention election was decried by people concerned that election of judges politicizes the judiciary, as well as by opponents of the death penalty. In a speech before the American Bar Association two days after White's defeat, U.S. Supreme Court Justice John Paul Stevens stated that he considered the popular election of judges to be "profoundly unwise." He stated: "A campaign promise to be 'tough on crime' or 'enforce the death penalty' is evidence of bias that should disqualify the candidate from sitting in criminal cases."^[10] The political nature of White's removal from the court has been likened to the earlier election defeat of California Chief Justice Rose Bird.^[5]

When Adolpho A. Birch, who was chief justice of the court at the time of the State v. Odom decision, came up for a judicial retention vote in 1998, death penalty supporters campaigned for his removal. However, he was the beneficiary of a public awareness campaign on the importance of judicial retention elections that was mounted by the state's bar association, Farm Bureau, and League of Women Voters in Tennessee, and he retained his seat with 54 percent of the vote.^[5][13]

Law school faculty career

After leaving the state supreme court, White held one-year law school visiting professorships at Washington and Lee University (1997-1998), West Virginia University (1998-1999), and the University of Denver (1999-2000).^[7] In 2000 she joined the faculty of the University of Tennessee College of Law, where she is Elvin E. Overton Distinguished Professor of Law and directs the Center for Advocacy.^[1]

References