Two proposed constitutional rewrites changing how Tennessee selects Supreme Court and appellate judges have been approved in the state Senate.
Both measures have a long way to go before becoming law, but the competing proposals hint at divisions within the Republican Party, the Legislature and the public at large as to how the state should choose its most powerful judges.
The upper chamber on Monday voted 23-8 to revamp the current system by enacting a new system that gives the Legislature authority to approve or reject judges the governor appoints, much like the federal system where the president appoints and the Senate confirms.
Under the plan sponsored by Sen. Brian Kelsey, R-Germantown, judges winning approval from the General Assembly would later face voters in up-or-down, non-competitive yes-no retention elections.
“What we have is a resolution that preserves the best part of our current system, builds upon what our founding fathers drafted and adds new pieces that improve upon what our founding fathers drafted,” said sponsor Sen. Brian Kelsey, R-Germantown.
The federal system is flawed, said retiring Sen. Andy Berke, D-Chattanooga, who voted against Kelsey’s measure.
Berke, vice chairman of the Senate Democratic Caucus, said lawmakers by habit and nature tend to politicize whatever they touch. To purposely put them squarely in the middle of the state’s judicial-selection process would be to invite “mischief,” he said.
“We are officially detracting from the governor’s power in the appointment of judges and adding power to the Legislature,” he said on the Senate floor Monday night. “The one thing that we will do if the General Assembly is given this power is play politics.”
Last week, the Senate voted 21-9 on SJR183 to grant express authority for the Legislature to determine how the state empanels judges, which now involves the governor picking them from a list provided to him by a selection commission. Those judges later facing retention elections to renew their eight-year terms. The governor and the two Republican speakers prefer this system, known as the “Tennessee Plan.”
Lt. Gov. Ron Ramsey, a Republican, has said he believes that over time the current system is most likely to generate justices who are conservative in outlook.
Earlier this month, a proposal to require judges face popular elections died in committee.
Passage in the Senate is one of many in a long list of milestones needed to formally ratify a proposed amendment to the state’s guiding document. Both measures still need approval by House lawmakers this spring before the Legislature call it quits for the year and begins campaign season.
A supermajority of lawmakers — two-thirds — will have to OK the proposal again before the 2014 election in order to put the change to the voters, who get the final say.
The call for rewriting the Tennessee Constitution comes after years of debate over whether the state is currently following the spirit and intent of the document’s drafters, who wanted judges to face elections.
The Constitution states, “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.”
Mark Engler contributed to this report.