At their fall meeting in Memphis last week, the Tennessee District Attorneys General Conference voted to endorse Amendment 2, a proposed change to the state Constitution to grant the governor authority to pick Supreme Court and appellate judges. But the vote was by no means unanimous, and it took two tries to get it over the two-thirds hump that the conference requires for making such endorsements.
“Quite frankly, there was strong opposition from a few,” Wally Kirby, executive director for the DA’s organization, told TNReport. “Some of them feel like all of the judges should be properly, popularly elected — like they are.”
Kirby said that Bill Gibbons, a former Shelby County prosecutor who for the past four years has served as head of the state’s Department of Public Safety and Homeland Security, was on hand and lobbying heavily for the endorsement. Gibbons’ boss, Gov. Bill Haslam, is chairman of the “Yes on 2” campaign.
After an initial vote on Amendment 2 fell short, Kirby said there was a call for a redo. District attorneys from around the state who were absent from the meeting were contacted for their input. He said there was consensus among those present that “this was something that they ought to have input on from all the elected DAs — so phone calls were made to the ones who couldn’t be there because of court appearances or whatever.”
There are 31 elected district attorneys general in Tennessee — and ultimately at least 21 voted to endorse Amendment 2.
Kirby wouldn’t provide names of those who voted against the measure, but he related that some felt Amendment 2 is confusing, and that the campaign in favor of it has been misleading. The “Yes on 2” commercial suggesting that the amendment protects the people’s right to vote for judges is “very deceiving,” he said.
“That is an out-and-out falsehood,” said Kirby. “It does not give you the opportunity to vote for a judge. It gives you the opportunity to vote in a retention election eight years from now.”
Amendment 2 seeks to eliminate the Tennessee Constitution’s declaration that “The judges of the Supreme Court shall be elected by the qualified voters of the state.”
That sentence would be replaced by a series of provisions outlining a system of appointment-and-retention wherein the governor picks all the members of the appellate judiciary and the Supreme Court. The judges would then run unopposed in retention elections as many as eight years later. That new system would look a lot like what is in fact in place now — a system many Republican lawmakers, including a number of Amendment 2 supporters, regard as unconstitutional.
“The way Tennessee has been picking appellate judges is blatantly unconstitutional,” wrote Senate Judiciary Chairman Brian Kelsey, R-Germantown, in an op-ed for the Tennessean last week. Kelsey, who spent the last three years shepherding Amendment 2’s constitutional amendment language through the General Assembly to get it before voters in November, wrote that Amendment 2 will “fix the problem” and give the state a system similar to that used in Washington, D.C. He called the federal method a “tried and true system for choosing judges.”
One change that Amendment 2 adds to the so-called “Tennessee Plan” currently in effect is that the Legislature would have the power to turn down a judicial appointment by the governor. However, if the Legislature “fails to reject” a nominated judge within an allotted time, the appointment would automatically take effect.
In the federal system, a judge must actually win confirmation, not merely avoid an outright rejection vote.
If Amendment 2 fails, leading lawmakers in both GOP supermajority-controlled chambers of the General Assembly have said popular, contested elections for judges will likely be adopted going forward — thus, the voters of Tennessee would henceforth directly decide who serves at all levels of the judiciary.