You wouldn’t really know it by the results of a recent vote in the state Senate, but Republicans in the Legislature are still split over a proposal to alter the Tennessee Constitution to change the way judges are selected.
Disagreement among the GOP supermajority likely won’t stop the measure from making its way to the general election ballot in November 2014, but it could signal that advocates for the change face an uphill battle convincing conservative voters that it’s the right thing to do.
Last week senators overwhelmingly approved a state constitutional amendment that would institute a new system for selecting Tennessee Supreme Court and appellate judges. Senate Joint Resolution 2, which passed 29-2 on Feb. 21, outlines a plan similar to that used by the federal government, wherein the president nominates judges and the United States Senate confirms or denies. It now heads to the House, where, like in the Senate, it must receive the support of two-thirds of the body in order to secure a place on the ballot.
Germantown Sen. Brian Kelsey, the newly appointed chairman of the upper-chamber’s judiciary committee, is the sponsor of what he calls the “Founding Fathers Plan Plus.”
Kelsey has said his proposal “follows the tried-and-true system of our Founding Fathers, in that it starts with appointment by the executive and then it finishes with confirmation by the Legislature.” Under SJR2, the governor would nominate Tennessee Supreme Court and appellate level judges and the General Assembly would have 60 days to confirm or deny the appointment. After serving an 8-year term the appointee would then be subject to a “retention election” in which Tennessee voters would deliver a yes-or-no verdict on whether the judge should continue serving on the bench for another 8-year term.
Kelsey sees the plan as a compromise between those who favor direct-elections of judges, and those who favor the actual system that is now in place, which involves the governor appointing judges from a list of nominees picked by a special commission.
The Tennessee Constitution currently reads, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It declares that judges on lower courts “shall be elected by the qualified voters of the district or circuit to which they are to be assigned.”
During the Senate floor debate on SJR2, three Republicans said they don’t expect voters will go along with Kelsey’s program.
Tennesseans have twice already rejected attempts to formally deprive them of the authority to select judges, and they’ll likely do so again, said Frank Niceley of Strawberry Plains.
“In 1907 the people of this state were asked, Do you want to give up your ability to elect judges? They said no,” said Niceley. “Seventy years later in 1977, ironically the same year the young sponsor of this bill was born, they were asked again, Do you want to give up your ability to elect judges? We offered 13 amendments that year. They ratified 12 amendments, but the thirteenth amendment…they answered, No, we do not want to give up our ability to elect judges.”
The Legislature and governors since then have “ignored the constitution and the wishes of the people,” Niceley said. He added that in the past he always figured if Republicans ever gained gained control of the General Assembly they’d quickly give power back to the people to pick who serves on high-level court benches.
Niceley now says he was mistaken about that.
“I assumed when the Republicans took over that we would immediately go to electing judges — since it is constitutional, it is clearly constitutional,” he said. “But somehow the same powerful group of lawyers and judges that controlled the Democrats through the years suddenly got control over the Republicans.”
Niceley and Knoxville Republican Stacey Campfield were the only senators to vote against SJR2. However, Mae Beavers, R-Mt. Juliet, said she, too, expects the people will reject SJR2. Beavers said the only reason she voted in favor of the amendment on the Senate floor is because after the electorate shoots it down “they will finally get to vote for their judges as the constitution says right now.”
“I want the people to vote on this — I want them to tell us how they feel about it…then hopefully we’ll go back to doing it right,” said Beavers, who formerly chaired the judiciary committee before Lt. Gov. Ron Ramsey snatched back her gavel and handed it over to Kelsey at the start of this year’s legislative session.
During a press conference after the floor session Ramsey said he was surprised there wasn’t more opposition to SJR2. He hinted that while he was a yes vote for SJR2 on the floor and will vote for it in the ballot booth next year, it won’t be one of his political priorities to campaign for it.
“If people ask me where I am, I’ll tell them. But that’s it,” Ramsey said.
That’s a far cry from the Blountville Republican’s pledge last legislative session that he’d “be at the mountaintop screaming” his support for the “Tennessee Plan” currently in place, should it have come to a popular vote. In January 2012, the lieutenant governor, Speaker Beth Harwell and Gov. Bill Haslam together proposed that voters be given an opportunity to endorse the status quo, but the resolution failed to win legislative approval.
Over in the House, GOP Caucus Chairman Glen Casada anticipates SJR2 will likely win the necessary two-thirds, even though a contingent of Republicans — himself included — prefers direct judicial elections.
“It’s going to be close, but I do think it has 66 votes,” Casada said in an interview earlier this month. Nevertheless, he expects the voters of Tennessee will ultimately decline it.
“I really think it will fail,” he said.