How to Pick Judges? Issue Remains Politically Unsettled in TN

Gov. Bill Haslam knows he doesn’t want Tennessee Supreme Court and appeals court judges to be selected by voters. But he’s unwilling to say if he believes an unbiased reading of the Tennessee Constitution backs him up on that.

“Two or three times the Supreme Court has said it is. Others have different opinions. I don’t know that I’m the legal authority on that. Again, I can tell you what I think is the best way to do it,” Haslam told reporters after giving the keynote address at the Jobs4TN conference in Nashville last week.

The governor may want to dodge the question of constitutionality that continues nagging at the “Tennessee Plan,” but it is of central concern in a debate that could unfold in the General Assembly in 2012. The GOP is to some degree split on the issue of whether it’s wise to put Tennessee voters back in charge of electing high-level judges, but there’s a consensus among Republican lawmakers that the state’s guiding document, under its current wording, mandates that judicial selection occur in just that fashion.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” Judges on the “inferior courts,” according to the state’s constitution, “shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”

It also says the governor, or any other constitutionally recognized government official, must “take an oath to support the Constitution of this state.”

Currently, the governor chooses from a slate of judges approved by the Judicial Nominating Commission to serve on the Supreme Court, the Court of Appeals and Court of Criminal Appeals. The judges face retention elections within two years of that appointment, then join the rest of the judicial community in unopposed yes-no retention elections that happen in a regular eight-year cycle. Trial court judges face contested elections. The next major retention election is in 2014.

One such judge is Jeff Bivins, who Haslam appointed to the Court of Criminal Appeals earlier this month. The governor will also have to appoint a replacement for the late Criminal Appeals Judge J.C. McLin. Both Bivins and McLin’s successor will face their first retention election in August of 2012, even though they’ll hear and make rulings on cases before then.

The seeming disconnect between direct judicial elections and so-called “merit selection” by the state’s legal and political establishment is an issue that’s garnered much pro-and-con debate before, and it is again — both in Tennessee and nationally.

The Tennessee Legislature asked voters back in 1978 to give a constitutional stamp of approval on their system of combining judicial appointments and retention elections. Voters rejected that plan — although that particular issue wasn’t the only one before them on the ballot question they faced.

“There’s some concern that if they try it again, voters will reject it again,” said Brian Fitzpatrick, a Vanderbilt University law school professor who favors judicial elections.

“I think there is a sense among voters of liking contested elections, because they’d have a lot of control over who’s on the courts,” he told TNReport this week.

Across the country, eight of 22 states with merit selection considered switching to election-based practices or editing their merit selection laws this year, according to Justice at Stake, a Washington-based organization that favors trying to keep money out of how judges are selected.

The issue will be on the Tennessee Republican legislative agenda next year as well. Top-level GOP lawmakers say they want to start the ball rolling to ask Tennessee voters to rewrite the state constitution to reflect the current selection process. Meanwhile, another faction of Republicans is pushing for all judges to face the same kind of elections lawmakers do.

Haslam said he’s fine with the Legislature attempting to rewrite parts of the state constitution to condone the so-called Tennessee Plan, which was established by the Democratically controlled state Legislature in 1971.

Redrafting some of the state Constitution’s judicial selection language is the expressed preference of Lt. Gov. Ron Ramsey, R-Blountville. He says the Tennessee Plan is blatantly unconstitutional. The second most powerful majority-party lawmaker in the House of Representatives, Chattanooga Republican Gerald McCormick, agrees — and yet he, too, opposes reverting to the system the Tennessee Constitution “so clearly states” should be the practice.

“If we’re going to have a constitution we need to live by it, and if there are some faults in it, we need to change it — and I think this is one of those cases,” McCormick told TNReport.

The Tennessee Bar Association stands by previous Supreme Court opinions that say the current structure is constitutional, according to Executive Director Allan Ramsaur. Further spelling that out in the Constitution is “unnecessary,” he said. The bar association would likely nonetheless back that effort, if that’s the direction the Legislature wants to go, Ramsaur added.

Push comes to shove, though, Haslam said his office will be vocal next year in saying that judges should not be subjected to popular elections. Supreme Court Chief Justice Cornelia Clark has also lobbied against electing judges.

“I don’t think we should elect judges, and that will be a place where I’ll let those views be known if we get there,” Haslam told reporters Sept. 22 in Nashville.

In fact, Haslam took some of the credit earlier this year at a Tennessee Judicial Conference in Chattanooga for derailing the push to elect judges during the 2011 session of the General Assembly.

Last legislative session, lawmakers mulled whether to change the method for selecting judges to a popular election or to ask voters to OK revising the constitution to clarify that judges can be appointed then submitted to retention elections.

That constitutional amendment would need General Assembly approval next year, then a two-thirds majority vote in favor in the 2013 or 2014 Legislative session. The governor’s endorsement is not required for constitutional rewrites.

The Tennessee Judicial Nominating Commission is scheduled to dissolve in 2013, though a bill to extend the commission is expected to be filed by early next year. Without the commission, the “Tennessee Plan” would no longer function in its current manner.