NashvillePost.com exclusive: SC nominee Koch speaks on the record

Court of Appeals Judge Bill Koch addresses politics, the death penalty and his chances to be Tennessee's next Supreme Court Justice

Email | Print By Ken Whitehouse

Judge Bill Koch

Almost hidden in the ongoing Tennessee Supreme Court controversy is Court of Appeals Judge William C. Koch Jr.

Koch has been rather under the radar, by comparison with his two rivals for the seat now vacant on the high court, for a number of reasons. He hasn't been chair of the Tennessee Democratic Party and a candidate for the U.S. Senate, like fellow nominee Houston Gordon. He has never appeared in the movies or attracted national attention as a radical city councilman in Berkeley, Calif., like nominee D'Army Bailey. And Koch is not African-American, as Bailey is, and so he is not at the center of the racially tinged drama surrounding the vacancy on the high court due to the retirement of the court's only African-American, Justice A. A. Birch.

Koch, who was nominated last year for a Supreme Court seat that was eventually filled by Justice Cornelia Clark, received two votes against retention in the Tennessee Judicial Evaluation Commission's proceedings this past December. The knock against him then was the unusual amount of time it took him to render his decisions. Since then, by his own admission, he has sped up his process.

Attorneys speaking on background to NashvillePost.com have said there has never been any question as to Koch's legal acumen. He is widely considered one of the smartest judges in the state... just a slow writer of opinions.

In his most recent nomination to the high court, two issues have circulated among court watchers handicapping the selection process as to his drawbacks. First is the fact that he is not African-American, and second is the belief that he is Republican. Koch spoke on the record about these issues and more.

"I have heard the comments," Koch said, "about being Republican. I can't really say I am either Democrat or Republican. I vote for the person, not the party. I have spent my entire career since law school as a state employee."

In 1971, about the same time he graduated from Vanderbilt University Law School, Koch was hired by then-Tennessee Attorney General David Pack as one of the first law clerks the state ever took on for the AG's office.

Koch stayed in the Attorney General's office until being asked by then-Gov. Lamar Alexander to serve first as his commissioner of personnel and then as his general counsel.

"Lamar had been at Dearborn and Ewing, I got to know him when I was one of the attorneys that assisted in his early swearing in 1979 in the wake of the Blanton troubles. I was prinicpal advisor working with his team and then-Speaker Ned McWherter to give legal justification for the move."

The Blanton that Koch is referring to is then-Gov. Ray Blanton, who had granted a number of highly suspicious late-term paroles for state inmates that caused McWherter, Lt. Gov. John Wilder and the Attorney General's office to work with Alexander to swear the new governor in early. At the time, Wilder called it, "Impeachment... Tennessee style." Blanton was eventually convicted of unlawfully selling liquor licenses.

"When Lamar called me about running personnel," Koch said, "I told him that I had no background in human resources and that all the Republicans would say 'Why are you hiring this Democrat?' He told me that he wanted me there because Republicans from all over the state would be calling saying hire this person and fire this person and he wanted someone who wouldn't play that game."

After serving two years in that position, Koch became Alexander's staff attorney until he applied for a vacancy on the Court of Appeals. "In 1984, the selection commission worked differently. There was no time limit or limit on how many people could speak on your behalf. I had people like Frank Gorrell, Tommy Wiseman, Bill Leech and Ray Ashley speak for me," Kock said. Leech and Ashley had been Tennessee Attorneys General, Gorrell was a former lieutenant governor, and Wiseman was a U.S. District Judge.

Asked if he viewed himself as a Republican being considered by a Democratic governor, Koch replied: "I believe in the person, not the political party. I like people who show passion for their job. I do believe 'dance with the one who brung ya,' so obviously I have tremendous respect and support for Alexander. However, I also think people like House Speaker Jimmy Naifeh, House Majority Leader Kim McMillan and State Rep. Rob Briley bring passion to the job, and I support them. I like people who are passionate about their jobs. Passion is not partisan. I would also add that I am a lawyer first."

The question on top of most people's minds in regard to Bredesen's Supreme Court pick is race. Should Bredesen choose Koch or fellow nominee J. Houston Gordon, the court would be without an African-American jurist for the first time in approximately 10 years. Koch has heard the concerns surrounding the dilemma.

When asked whether Bredesen would pick the next justice on race or merit, Koch replied: "Both. If I didn't think Bredesen would be fair in his selection, I wouldn't have applied for the job, I can't say that about every governor I have known."

As for the matter of race in this appointment, "one of our goals has to be for the judicial system to reflect the people it serves," Koch said.

"It's a seller's market for qualified minority candidates," the judge noted. "The judicial system and Tennessee law firms compete with Atlanta, Washington, Houston, and so on in retaining minorities. Many candidates that are qualified are making much more in the private sector. Is it fair to ask them to sacrifice pay and their family in order to set an example? The percentage of minority lawyers in this state is small, and the percentage of qualified candidates of any race for the Supreme Court is an even smaller pool. These are the cards the governor has been dealt."

One of the claims heard recently around Capitol Hill is that Bredesen is delaying his selection until he can be assured that new justice will support the application of his current legal counsel, former Bass, Berry and Sims attorney Bob Cooper, to be Attorney General. Koch took umbrage at the suggestion.

"I firmly believe that there are no ulterior motives in the process. I believe it is genuine and personal, not political" he insisted. "Whoever the next Attorney General is should have the confidence of both the Supreme Court and the governor." Koch added that while the AG is considered the governor's attorney, he would resolutely rebuff any suggestion of the AG appointment as being a criterion for selection to the top court.

Finally, as previously noted in other articles, retiring Justice Birch was known as the reliable dissent on capital cases. Koch was asked if he would be filling that same role if appointed.

"I am profundly worried about error," Koch said, "but also know I have written opinions that supported the use of lethal injection." Koch expanded that the "errors" he was concerned about were not just putting an innocent individual to death, but also in trial representation, jury instruction, and sentencing. He added, "I would prefer that the other branches of government tackle the issues of giving the mentally ill or juveniles the death penalty."