Gov. Bill Haslam indicated this week he’s not wedded solely to the idea of rewriting the Tennessee Constitution to legitimize the state’s current method of selecting judges.
The governor said he’s amenable to implementing a system that mirrors the federal government’s judicial-selection practice involving legislative confirmation of judges nominated by the chief executive.
Earlier this year the governor and the Tennessee Legislature’s highest-ranking Republicans stood shoulder-to-shoulder in agreement that lawmakers should revise the state’s guiding document to reflect the current practice for assigning judges to rule over the state’s most powerful courts.
“What the speaker and lieutenant governor and I came out with and said was we don’t think going to popular election of judges is the right plan,” Haslam said Thursday. “We also felt like the state’s current plan is working well, although there was an acknowledgment that there is a lack of clarity with what we are doing now and what the Tennessee state Constitution says.”
Judges for the Tennessee Supreme Court and other appellate courts are chosen by the governor from a slate of candidates provided by a selection commission. They later face yes-no “retention” elections to renew their eight-year terms.
Many believe the Tennessee Constitution unambiguously requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation. The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “The judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”
“Our current method of choosing judges is a very good system, but it is not constitutional,” Lt. Gov. Ron Ramsey told reporters back in January when he, Gov. Haslam and House Speaker Beth Harwell announced they favored trying to convince Tennessee voters to put a stamp of constitutional approval on the status quo.
Haslam told reporters after a meeting with the Tennessee Board of Regents in Nashville Thursday that he has people “working around, right now, trying to find some consensus around something that enough people can get behind.”
The Legislature is split three ways on the issue: constitutionalize the way the state currently selects judges, rewrite the Constitution to allow the governor to appoint and the General Assembly confirm judges, or keep the Constitution as-is and begin electing judges by popular election.
Haslam maintains he is opposed to electing judges, and he said in January he’d prefer the state bring the state Constitution in line with the current practice.
A Senate committee this week advanced a measure that calls for rewriting a portion of the state Constitution to mirror the federal practice for selecting judges. The proposal, SJR475, calls for the governor to appoint judges who are then OK’ed by the General Assembly.
Any changes to the Constitution would require a simple majority approval from the Legislature this year but would call for a two-thirds vote again before going before the voters in 2014.
Given that lawmakers are fairly split on which direction to go, a super-majority backing could be difficult to earn.
David Barton, a conservative author, historian and Christian activist, says Tennessee is among a number of states where the judiciary has over time developed an unhealthy immunity from democratically enforceable checks and balances.
So-called “merit selection” judicial appointment arrangements like the “Missouri Plan,” after which the “Tennessee Plan” was patterned, are lauded by legal establishment professionals who say such systems “remove politics” from the process of picking the most qualified higher-court justices to handle appeals.
On the contrary, what merit selection systems really tend to do is “move judges away from the people,” said Barton, who visited Capitol Hill this week to discuss his views on judicial reforms and constitutionalism with state lawmakers and conservative activist groups, among them the Tennessee Judicial Reform initiative, Faith and Freedom Coalition-TN, the Black Robe Regiment, and 9-12 Project Tennessee.
The further removed members of the judiciary are from the electorate, “the more problems you are going to have — the less accountability you will always have,” said Barton, who is founder and president of Wallbuilders, a group “dedicated to presenting America’s forgotten history and heroes, with an emphasis on the moral, religious, and constitutional foundation on which America was built – a foundation which, in recent years, has been seriously attacked and undermined.” By way of explaining the meaning of the organization’s name — which comes from the Old Testament Book of Nehemiah — the overview page at Wallbuilders.com proclaims, “We have chosen this historical concept of ‘rebuilding the walls’ to represent allegorically the call for citizen involvement in rebuilding our nation’s foundations.”
Barton rejects the notion that having elected leaders like the governor appointing judges satisfactorily fulfills the constitutional mandate that judges be accountable to the the electorate.
“If you have an uprising out here with the people, you have three or four levels to buffer it down, and by the time it gets to (judges), it’s really not an issue,” said Barton. “That makes the same sense as saying bureaucrats are accountable to the people because we elect the governor and the governor appoints the bureaucrats: No, it doesn’t work that way.”