Most defendants would love to have the power to handpick judges assigned to decide a lawsuit against them. Gov. Bill Haslam, it seems, finds himself in just that enviable position.
Late last Friday afternoon, Haslam announced he had chosen the members of a special ad hoc panel. The panel will serve as a temporary state Supreme Court to rule on a lawsuit that names the governor as a defendant.
The move became necessary after all the the sitting members of the Tennessee Supreme Court recused themselves from hearing the case of John Jay Hooker, on behalf of himself and others, v. Governor Bill Haslam, et al. The lawsuit on appeal is a challenge to the constitutionality of Tennessee’s “merit selection” appointment and “retention election” system of picking appellate and Supreme Court judges.
Asked at a press conference this week if he’d struggled with the potential appearance of a conflict of interest, Haslam indicated his administration had indeed discussed the matter and had decided that he was required by law to appoint the panel.
“We talked with our legal counsel about that,” the governor said after a higher education discussion at Scripps Network in Knoxville Tuesday.
“If the existing Supreme Court recuses themselves, somebody has to appoint them and that’s the governor’s role under the Constitution in the state of Tennessee,” he said.
The matter has been simmering in the background for years, with Hooker, an outlying but ever-enduring fixture on Tennessee’s political scene, tending the flame. The subject of judicial elections has taken on renewed prominence in the past couple years, as many majority-party Republican lawmakers have said they are committed to reconciling the practice of selecting judges with the state Constitution, which they see as at odds with one another.
Hooker told TNReport this week he knew from the get-go Haslam would have to choose members for the special court. But he says he has the right to question and challenge those appointments, for example that of William Barker, a retired Supreme Court justice.
“How can he possibly be impartial in the matter?” Hooker said. “He’s got a vested interest. What is the difference in his interest as a former member of the Supreme Court or the sitting member on the Supreme Court?”
The court system so far has no timeline for when the case would be heard, according to Casey Mahoney, the court system spokeswoman.
House Speaker Beth Harwell is also named in the lawsuit. Her office says there’s nothing worrisome about the governor appointing judges on the court to hear the case.
“It is a statutory duty of the governor to appoint a special state Supreme Court in instances such as this, and literally no one else in the state is given such authority,” said spokeswoman Kara Owen. “There is no reason to expect that this panel would be anything but fair and impartial in the proceedings.”
The outcome of the legal decision could be paramount in the ongoing fight over whether the state is truly “electing” judges.
High-ranking members of the judiciary are selected by the governor who then face “yes-no” retention elections to renew their eight-year terms. Critics of the current system known as the “Tennessee Plan” say the Tennessee Constitution calls for judges to be “elected,” much like lawmakers and lower-level judges are.
The state Constitution says, “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.”
Haslam and the top two Republican legislative leaders are resolute opponents to high-ranking judges facing popular elections. The trio rallied around the idea of rewriting the constitution to reflect how judges are currently selected, but the Republican-led legislature was split on the idea and ultimately dumped that proposal, SJR184, late in the legislative session.
House Republican Caucus Leader Debra Maggart voted in favor of legislative confirmation, although attempts to reach her for comment on the lawsuit were unsuccessful Wednesday.
Courtney Rogers, a Republican running against Maggart in Sumner County, maintains that the state ought to bring itself in line with a literal reading of the constitution and require judges to face popular elections, said her spokesman Jeff Heartline. Although he said she had no preference yet on how the constitution should assign judges to the bench.
“If we were following the Constitution, these questions wouldn’t come up,” said Rogers’ spokesman Jeff Hartline, when asked what Rogers thought about the lawsuit. “Let’s follow the constitution and let the people decide.”
The issue has divided Republicans in the Legislature and on the primary campaign trail. Sen. Doug Overby, R-Maryville, has stressed that people shouldn’t employ their own literal reading of the state’s guiding document to justify judicial election. They should instead look to the Supreme Court’s guidance on matters of interpretation.
Andrea Zelinski and Itzel Gonzalez contributed to this report.