NashvillePost.com exclusive: A conversation with SC nominee D'Army Bailey

The Memphis jurist, one of three nominees for seat now open on Tennessee Supreme Court, addresses racial politics, death penalty and more

Email | Print By Ken Whitehouse

D'Army Bailey

Memphis Circuit Court Judge D'Army Bailey is no stranger to controversy.

In 1962, Bailey was among a group of students expelled from Baton Rouge's Southern University for protesting racial segregation. He went on to finish an undergraduate degree at Clark University in Massachusetts and a law degree at Yale University.

In 1971, while on the city council in famously liberal Berkeley, Calif., Bailey made national headlines by refusing to stand for the pledge of allegiance as meetings opened. He subsequently lost his seat on the council in a recall election.

Bailey then came home to Memphis, practicing law for 16 years before being elected to Shelby County's Circuit Court in 1990. In 1999, he presided over a nationally noted trial in which three large tobacco companies faced claims from the families of deceased smokers; the jury acquitted the companies.

Now, Bailey is the only African-American nominee to replace the recently retired Tennessee Supreme Court Justice A. A. Birch, the first African-American to serve as chief justice of the high court.

NashvillePost.com spoke with Bailey this morning about his chances and the controversy surrounding his nomination.

Many lawyers who have spoken to NashvillePost.com have said that they are worried that Bailey is too liberal for the court, thus making him a political liability, and that the only reason that he has been nominated is that he is African-American. Bailey, too, has heard the complaints. He disagrees with the conclusions others may be drawing.

"There is a line of separation," Bailey said, "and this is the only immediate instance when the executive branch and the judicial branch are at a junction. Will politics carry over into the selection? Bredesen acts on who is best and keeps politics out. If a politician decides to take the judiciary through the mill, I believe the state's citizens know to keep politics out of the courtroom."

Bailey added that while he was aware that other politicians might seek to use his appointment, should it happen, as ammunition for their campaigns, he does not believe such a possibility would be a determining factor in the appointment.

"Look at my record as a jurist," he said. "In my view, political views have no place in the court. It's not fair to the litigants when one brings an agenda." He then cited the jury verdict that acquitted the tobacco companies. "That case shows I run a fair court," Bailey said, adding: "The politics of the judiciary is cases being resloved in an even and timely manner, not Democrat or Republican."

He then said, "No one individual can determine the outcome of a Supreme Court case. That is what is good about the court, the diversity that the justices bring."

When asked about diversity on the court, Bailey asked rhetorically: "Am I on the list because I am black? You'll have to look at my record. I have had scholarly opinions published by Harvard, the Notre Dame School of Law, Washington and Lee University, and more. I graduated from Yale Law School. I practiced privately for 16 years before becoming a judge, even working part time as a public defender. I have worked on capital cases, I'm not sure anyone else has that experience. If one fairly looks at my record, I think they would say I am qualified."

When asked if there should be an African-American on the Supreme Court, Bailey commented: "Does the governor have an obligation to place an African-American on the court? The law says no. But there is a benefit, so I would say yes."

"One fifth of all Tennesseans are African-American, and there are a proportionally higher number of cases involving African-Americans. I think it is important to have an African-American on the bench, not only because of having someone who has lived the black experience, but also because part of the responsibilities of the court is outreach to communities, law organizations, and the like. It's important to have the black experience represented."

One of the issues that former Justice Birch was most noted for was his reliable dissent in cases involving the death penalty. Bailey, when asked if would act along the same lines as Birch, chose his words carefully. "If a juror can be asked that they put aside their personal feelings about the death penalty and consider a case, then a judge has to be able to do that too," he said. "I do think it important to have someone on the bench who has worked capital cases as a lawyer; experience matters. I would always want to make sure that trials have been conducted fairly -- death penalty or not."

Bailey was also asked about polls conducted by the Memphis Bar Association, polls that gave him the lowest approval ratings among Shelby County judges. Attorneys speaking to NashvillePost.com said that one of the marks against Bailey was a perception that he is arrogant. Bailey addressed the issue head-on.

"I have a fast-moving docket that leads to some angry lawyers. In my court, cases that drag on for two to three years often, but not always, mean that the lawyer hasn't worked dilligently on a case. Judges have a responsibility to move cases along, which some high-priced attorneys may not be too happy with.

"Another reason for my low rating by the bar is probably due to the fact that I don't rubber-stamp workers compensation settlements," Bailey observed. "If it isn't fair, I'll reject it."

"While I may score low in the Memphis Bar's eyes, I would like to add that only 17 percent of their members participated in their surveys," the judge said. "And I have been re-elected three times. In the election a few years back, I was the highest vote recipient in the county. I am here for the citizens of Shelby County, not just the lawyers."