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TNHDC: Haslam Letter to HHS Latest ‘Farce’ in ‘Continued Obstruction’ to TennCare Expansion

Press release from the Tennessee House Democratic Caucus; December 10, 2013:

Haslam Letter to Sebelius a Farce
The time to act is now on the Medicaid expansion.

NASHVILLE, Tenn. – Late yesterday, Governor Haslam released a letter to Health & Human Services Secretary Kathleen Sebelius regarding his continued obstruction of Medicaid expansion in Tennessee.

“The Governor’s letter is simply the latest in a series of farces,” said House Democratic Leader Craig Fitzhugh. “It’s more of the same hand-wringing, ducking and dodging we’ve come to expect from this administration, all in an attempt to absolve themselves of the worst moral and mathematical failure in a generation—denying health care to 330,000 working Tennesseans.”

Governor Haslam’s letter offers no specific proposals, instead laying out a series of complaints and concerns about the overall Affordable Care Act. It offers no details about the so-called “Tennessee Plan,” which the Governor has yet to provide either to the federal government or state legislators.

“Governor Haslam is seeking to offer lower quality care to fewer people and still collect all the money allocated in the Medicaid expansion – that is not something that Secretary Sebelius has the power to authorize, and he knows that,” said House Democratic Caucus Chairman Mike Turner. “If Governor Haslam is going to negotiate seriously with CMS on creating a ‘Tennessee Plan,’ it needs to be done in a way that both conforms to federal law and appreciates the economic, fiscal and moral blunder that would result from a decision not to expand Medicaid.”

A hybrid Medicaid expansion plan has already passed the Arkansas legislature and been approved by the federal government. The Arkansas Plan includes cost-sharing components and addresses questions about defining “medically frail” through a questionnaire developed by the state.

“Expanding Medicaid in Tennessee is not an impossible task, but Governor Haslam is doing everything he can to make it one,” said Leader Fitzhugh. “All of the serious questions about creating a hybrid plan have been addressed in the Arkansas Medicaid waiver. Tennesseans don’t have time for the Governor to wait for political cover. The time to act is now.”

The Tennessee General Assembly returns to session on January 14, 2014. Speakers Harwell and Ramsey have pledged to move the session along as quickly as possible, meaning the Governor may only have a few months left before legislators will be gone for the rest of the year. If we do not act by January 1, 2014, Tennessee will begin to lose $2.5 million per day in federal funding.

To Promote Judicial-System Awareness, TN Supreme Court Moves on Campus to Hear Cases

Tennessee’s highest court recently heard arguments in three cases at Middle Tennessee State University as part of a program that seeks to improve students’ understanding of how the judicial system works.

The Tennessee Supreme Court had been invited to MTSU by the American Democracy Project as part of their Constitution Day celebrations, with the intent of improving the understanding of how the judicial branch operates among students and faculty, said Dr. Mary Evins, an associate professor of history at MTSU, and the coordinator of the MTSU Chapter of the ADP.

“I think universally it’s understood that there is an inherent understanding of the executive branch — both at the federal and the state level — and there is an inherent understanding of the legislative branch, whether we love it or not people have opinions about it, but often the Judiciary tends to be the component of our tripartite system that is quite typically overlooked, and it’s such a meaningful part,” Evins told TNReport.

The justices held court at the university as part of its Supreme Court Advancing Legal Education for Students program, which is intended to “educate high school students about the judicial branch of government” by giving them the opportunity to hear oral arguments for a Supreme Court case, according to the Tennessee Courts System website.

“It’s perfectly suited for university students because our students really think and perceive at a higher level, and they have the opportunity for faculty to really go in depth with them, to read the case briefs and to be really, really prepared for intelligent dialogue with the Justices,” Evins said of the program, which took place for the first time on a university campus since its creation in 1995.

Students from the university had the opportunity to sit in on the oral arguments of three cases to be heard before the court, after which they had an hour-long debriefing session with the attorneys handling the cases, where they were able to ask questions about the specific cases, as well as the judicial process in general.

The opportunity offered by the program extends further than better understanding of the judicial process, and also provides students the opportunity to learn how to behave and dress in an official court setting, Evins said.

One professor of business law at MTSU framed the importance of understanding the operations of the judiciary with the upcoming 2014 vote to change the Tennessee Constitution and formally implement the Tennessee Plan for regular judicial retention elections of governor-appointed judges.

“The process we use to choose state Supreme Court justices and appellate court judges is changing, and in the next year, our citizens are going to be voting on a proposal to change the state constitution,” Lara Womack Daniel, an attorney and MTSU business law professor whose classes attended Tuesday’s sessions, said in an MTSU press release.

Fight Over Justices Charges Up Judicial Selection Lawsuit

Parties in a lawsuit challenging how high-ranking Tennessee judges are selected are presently more wrapped up in who will rule on the case than the merits of the case itself.

Gov. Bill Haslam last week appointed three new members to a Special Supreme Court to hear a lawsuit against him challenging the constitutionality of how the state has picked judges over the past four decades. Haslam’s earlier appointees stepped down after John Hay Hooker, a longtime political gadfly behind the lawsuit, pressured them to recuse themselves for having ties to an organization that lobbies against popularly electing judges.

Now, another special justice, W. Morris Kizer, has revealed that he donated to Haslam’s campaigns for Knoxville mayor in 2003 and governor in 2010. Kizer’s household gave $3,000 to Haslam’s gubernatorial campaign, according to campaign records.

Kizer insists his political donations don’t “constitute a basis for disqualification,” but Hooker contends every link is suspect.

“It’s like a football game between the University of Tennessee and Vanderbilt,” said Hooker, an 82-year-old former Democratic Party gubernatorial candidate who today is asking the Special Supreme Court to take up his case. “Do you want the referee to be a graduate from the University of Tennessee or Vanderbilt? That’s a no-no.”

He isn’t the first person to use a football analogy to attempt to influence debate about judicial selection.

In 2011, then-Supreme Court Justice Cornelia Clark tried to convince members of the Tennessee Press Association that electing judges would be just as bad as electing referees for a football game.

Referees would say they will still call a fair game if one team contributed more money to their election campaign than the other, Clark said.

“And I’d say I’d be willing to believe they’re probably going to try to do that,” she said. “But I’m not sure perception would be right.”

Like Clark, the governor openly opposes judicial elections. Haslam maintains that members of his Special Supreme Court may have opinions about whether judges should be popularly elected, but that shouldn’t interfere with their ability to render an impartial judgement. The newest members of the special court are Shelby County criminal court Judge J. Robert Carter Jr., retired East Tennessee U.S. Attorney James R. Dedrick, and Monica N. Warton, chief legal counsel for Regional Medical Center at Memphis.

“If you ask anybody if they’re alive and human, they have an opinion about things,” Haslam said last week before naming the three new members to the panel. “That’s different than having a conflict. I think anybody that we will appoint will understand that difference and will make sure there’s no conflicts.”

Appeals judge Alan Glenn, chairman of the Judicial Ethics Committee, said the governor’s interpretation is correct. The tricky part, he said, is defining what conflicts can “reasonably” be questioned.

“Like defining what’s fairness and what’s beauty, everyone has their own ideas,” he said. “What is reasonably questioned impartiality? Everyone has their own views on it.”

Supreme Court and other appellate judges are appointed by the governor, then face yes-no retention elections every eight years under a policy known as the Tennessee Plan. The Legislature has for the last few years debated whether the practice aligns with the state Constitution, which some say clearly calls for popular elections.

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.”

While Hooker awaits the Special Supreme Court’s official decision to take up the case, he is also itching for a chance to officially question justices on whether they can impartially rule on the case, a right he insists he’s given under the state Constitution.

The governor in July picked the initial members of the Special Supreme Court. The state’s five Supreme Court justices recused themselves from hearing the case because they will be directly affected by the ruling.

Political insiders and onlookers are paying close attention. The Tennessee Plan is scheduled to sunset June 30, 2013, when lawmakers will decide whether to renew it.

Lawmakers will also have to decide whether to give final approval to a bill that would amend the Constitution to allow appellate and Supreme Court judges to be appointed by the governor and confirmed by the Legislature. The judges would still face retention elections. If approved by lawmakers, the amendment would go before voters in the 2014 general election.

“It’s an interesting case, I’ll say that. All of us are looking at that closely,” said Lt. Gov. Ron Ramsey, who is also a named defendant. Ramsey has said he believes the Tennessee Plan in its current form is indeed unconstitutional — although he, like the governor, opposes direct judicial elections.

Governor to Appoint New Judges to Special Supreme Court Hearing Challenge to TN Plan

Gov. Bill Haslam said Friday he plans to appoint replacements to a special court assigned to rule on the constitutionality of the state’s judicial selection method after three former members recused themselves for fear of appearing biased.

The governor contends the three original appointees could have stayed on the bench despite challenges to their objectivity because they are entitled to their personal opinion about whether judges should be elected, the central issue of the lawsuit at hand.

“Judges have opinions on things all the time, and I honestly think each one of them could have still rendered a very impartial and fair decision,” Haslam told reporters before a ribbon cutting at Saks Fulfillment Center in La Vergne.

Meanwhile, Haslam’s adversary in the lawsuit is looking to knock off another one of the governor’s original appointees to the Special Supreme Court due to what he sees could be a potential conflict of interest.

John Jay Hooker, a longtime critic of the state’s merit-based system for selecting judges, filed the lawsuit against the governor and other high-ranking officials. He says the governor unconstitutionally appointed a judge to the Court of Criminal Appeals because the judge was not popularly elected.

He told TNReport he expects to file a motion challenging Special Court Justice Andrée Sophia Blumstein’s impartiality. He said her role on the editorial board for the Tennessee Bar Journal, a publication of the Tennessee Bar Association, poses a conflict because the association is in favor of the current practice for selecting judges, called the Tennessee Plan.

“I think the time has come for it to be obvious this is fixed, and it’s a battle between right and wrong,” Hooker told TNReport.

Blumstein declined to comment Friday.

The Tennessee Plan, which is now used to select appellate and high court judges, requires the governor to appoint judges, who then face yes-no retention elections every eight years.

Many, including Hooker, believe the Tennessee Constitution requires that judges at all levels be popularly 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.”

Three of Haslam’s five appointees to the Special Supreme Court recused themselves from ruling on the case last week, saying their ties to Tennesseans for Fair and Impartial Courts could taint the integrity of the court as it rules on the case.

TFIC is a vocal opponent of popularly electing judges, a practice the group fears would insert too much politics into a job that should be free of political strings.

Two of the original appointees, Judges William Muecke Barker and George H. Brown, are listed as members of the TFIC board of directors. A third, Robert L. Echols, works for a firm with close ties to the organization.

Haslam built the Special Supreme Court after justices of the state’s highest court recused themselves from hearing the case, saying their impartiality could reasonably questioned because they, too, are sitting judges.

The case is now at a standstill. Hooker has until late September to challenge the appellate court’s ruling that found Tennessee’s yes-no retention election practice constitutional. That move would send the case to the Special Supreme Court.

3 Of Haslam’s Special Supreme Court Judges Step Down

More than half the members of Gov. Bill Haslam’s hand-picked special Supreme Court have recused themselves from hearing a case to determine the constitutionality of how Tennessee selects appellate and high-court judges.

Special Supreme Court Judges William Muecke Barker, George H. Brown and Robert L. Echols announced Friday they had disqualified themselves from the case because of a perceived conflict of interest. The three have ties to a group that lobbies against judicial elections, which is the issue at the heart of the case.

“Although the undersigned Special Judges have not formed an opinion about the constitutionality of the contested language of the Tennessee constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” reads the Special Supreme Court order.

The three judges have ties to the group Tennesseans for Fair and Impartial Courts, an organization that has lobbied against moves to elect appellate judges.

Former gubernatorial candidate John Jay Hooker argues that judges should be popularly elected by voters, like lawmakers and lower-level judges are. He is suing Haslam and other state government officials for appointing a judge to the Criminal Court of Appeals.

“Why on earth they monkeyed around all this time is beyond me,” said Hooker.

“The problem here is that the fix was in. Hell would freeze over before those three judges would hold the retention election statute unconstitutional,” he continued.

Judges are now assigned to the bench through the Tennessee Plan, a method which requires high-ranking judges be appointed by the governor, then elected by the people to renew their eight-year terms through uncontested “yes-no” retention elections.

Many believe the Tennessee Constitution 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.”

The recusals leave Special Justice Andrée S. Blumstein and Special Justice W. Morris Kizer to man the court.

Through a spokesman, Haslam’s office issued the following statement:

The governor appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve. Their actions are out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court.

Judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day.

Haslam’s Special Supreme Court Picks Have Ties to Group that Lobbies Against Judicial Elections

Two lawyers named to a state panel to decide whether Tennessee’s system for selecting judges meets constitutional muster also lead a group that lobbies against judicial elections.

George H. Brown and William Muecke Barker are both listed as board members of Tennesseans for Fair and Impartial Courts, an organization that fights against “misguided individuals and groups … pushing to replace our merit based system with state-wide partisan elections.”

Brown and Barker, along with three other lawyers, were handpicked by Gov. Bill Haslam to decide a lawsuit brought by Tennessee’s most indefatigable critic of the state’s merit-based system of judicial selection, John Jay Hooker.

“(Haslam)’s thrown down the gauntlet,” said Hooker, a two-time candidate for governor who has been fighting this issue in court through various lawsuits since 1996. “He’s said these judges are my people. He’s kind of got me cut off at the pass.”

Hooker is suing the governor and other high-ranking state elected officials to try and force them to revert back to a system of direct judicial elections. Currently in Tennessee, the governor appoints judges to the state Supreme and other appellate courts, with voters choosing whether to renew their eight-year terms.

A third lawyer Haslam selected to the special Supreme Court, Robert L. Echols, works for the Nashville law firm Bass, Berry and Simms. The telephone number listed on the Tennesseans for Fair and Impartial Courts website rings at Bass, Berry and Simms. H. Lee Barfield, a member of the firm’s state government lobbying arm, is also a board member for TFIC and is past president of the organization.

The results of the case, Hooker v. Haslam, could have significant implications for state lawmakers. Constitutional sticklers have long argued that the state system of merit-selection by appointment followed by yes-no retention elections plainly violates the Tennessee Constitution. They say the mandate that judges be elected is being openly flouted.

However, Tennessee courts have upheld the view that retention elections meet the requirement that judges “shall be elected by the qualified voters,” as the Constitution mandates.

Haslam last month handpicked all five members of the Special Supreme Court to rule on the case, a task he said his staff carefully pondered given that the governor himself is a named defendant in the case. He’s standing by his appointees in the face of a push by Hooker to disqualify the trio for the appearance of bias.

“We could have just gone in there and appointed five people who thought exactly the same way. But I honestly feel like we worked to put together a very good panel,” Haslam told TNReport in Clarksville last week.

Gov. Haslam has made no secret of his own opposition to direct judicial elections in the past, saying he fears it would inject excessive and undue political influence into Tennessee’s judicial system. He asked lawmakers early this year to constitutionalize the current appointment-driven practice of selecting judges to clear up any confusion.

When that plan began to fall through, Haslam backed another constitutional amendment proposal to model the state’s system of selecting judges after the federal system, with the Legislature getting an opportunity to confirm judges the governor appoints. The plan now awaits approval from the General Assembly before it can be put to the voters in a referendum in 2014.

Sen. Mike Bell, R-Riceville, who argues the state is currently stepping outside constitutional bounds by appointing judges, said he is wary about the governor’s appointments to the special court.

“I think it would have been nice if the governor maybe would have gone out of his way to choose somebody who didn’t have the appearance of bias. Not that those men are biased, but it leaves the appearances there because of their connections,” he said.

Tausha Carmack Alexander, TFIC’s lobbyists at the statehouse, said the group would rather see anything in place besides “direct partisan elections.”

“We believe that forcing appellate judges to run in contested elections is very costly, and it will introduce more politics into the judiciary,” she said. “Everybody wants to ensure that we have courts that are fair and impartial. You can look at other states — West Virginia, Alabama — where it costs millions of dollars to run in some of the Supreme Court races. We just don’t think that is the way to go for selecting an appellate judiciary member.”

“There is plenty of data out there that indicates how costly (statewide judicial elections) can be, and how political it can be,” Alexander continued.

Hooker is now waiting for Brown, Barker and Echols to respond to his request they recuse themselves because their “impartiality might reasonably be questioned.” A written answer is due “promptly,” according to new court rules.

Barker, also a former Supreme Court Chief Justice who now practices law in Chattanooga, declined to comment on his ability to be impartial when ruling on this case.

“I just don’t think judges ought to be talking about a matter that sits before the court,” he told TNReport, adding that his opinion will be shown in his upcoming response to Hooker’s request.

Attempts to reach Brown, who specializes in mediation and arbitration in Memphis, and Echols Wednesday morning for comment were unsuccessful as of this posting. (TNReport will update this post if we hear back from them.)

The tricky part is how to define “reasonable,” said Judge Alan Glenn, chairman of the state Judicial Ethics Committee.

“There are certainly hundreds and probably thousands of cases where there could be the appearance of a conflict,” said Glenn, who is also an appellate court judge. “The catchall consideration has got to be where the judge’s impartiality can reasonably be questioned, and that’s where minds can differ.”

Three Supreme Court judges recused themselves from the case on July 27, just as Supreme Court Justice Cornelia Clark and Justice William Koch had on July 16. That same day, Haslam appointed the panel, and the Court of Appeals issued its ruling on Hooker’s case, finding that the Tennessee retention election practices are constitutional. Hooker has until late September to ask the Special Supreme Court to hear his appeal to the Appellate Court’s decision.

Andrea Zelinski and Mark Engler contributed to this report.

Senate Judiciary Approves Resolution Calling for Governor-appointed Supreme Court Justices

Press release from the Senate Republican Caucus; April 4, 2012:

(NASHVILLE, TN), April 4, 2012 — Members of the Senate Judiciary Committee gave approval to a major constitutional amendment resolution sponsored by State Senator Brian Kelsey (R-Germantown) to appoint state appellate judges in a manner similar to the federal model. U.S. Supreme Court justices, Courts of Appeals judges, and District Court judges are nominated by the President and confirmed by the United States Senate, as stated in the U.S. Constitution. Similarly, under Senate Joint Resolution 710, Tennessee’s Governor would appoint judges to the Supreme Court and state appellate courts, subject to confirmation by the General Assembly for eight year terms.

“Tennessee deserves and the Constitution demands a more open system for appointing judges,” said Sen. Kelsey. “This is a proposal that takes the best parts of the federal model and the Tennessee Plan that will give us quality judges who are responsive to the people.”

Tennessee’s Constitution requires that Supreme Court justices “shall be elected by the qualified voters of the state,” which concerns many lawmakers who believe the current system does not fully satisfy that mandate despite an Attorney General opinion to the contrary. Earlier this year, Lt. Governor Ron Ramsey, Governor Bill Haslam and House Speaker Beth Harwell also said legislative action is needed to ensure it is constitutionally correct.

Under the state’s current Tennessee Plan for selecting appellate judges, a 17-member Judicial Nominating Commission reviews applicants and sends the governor a panel of three nominees for consideration. The governor must then appoint one of the nominees or reject the panel and request a second panel. After being appointed through this process, the appellate judges must stand for approval by the voters after completion of their term, with the people deciding whether or not to “retain” or “replace” them.

Kelsey’s legislation would delete the Judicial Nominating Commission, giving the Governor full authority like the federal model to select the nominee he/she believes is best qualified to serve as judge. His resolution, however, would keep the current Tennessee Plan provision which gives voters an opportunity to retain or replace the judge through a statewide vote. Only state Supreme Court and appellate judges would be affected by the proposed changes. Trial court judges would continue to run in contested elections.

If approved by the General Assembly, the measure could be on the ballot as early as November 2014. Before proceeding to a vote by the people, the resolution must be approved by a simple majority of the legislature in 2012 after three readings and must receive a two-thirds majority of both chambers in the following legislative session.

Legislative Confirmation for Judges Advances

There’s little consensus on Capitol Hill over how the state should pick its highest ranking state judges, and the plot just got a little thicker.

The Senate Judiciary Committee advanced a plan Tuesday to change the state’s guiding document to reflect the federal practice for choosing judges, despite calls from top Republicans leaders to reinforce the state’s current practice of appointment by the governor.

Under SJR475, the governor would nominate judges for the Supreme and other appellate courts, and the Senate and House would confirm them.

The governor currently chooses those judges, who are subject to yes-no retention elections by voters every eight years, a process dubbed the “Tennessee Plan.”

Debate boils down to a long-running disagreement over whether the state currently follows the state’s Constitution.

“In my view, the Constitution says that the judges will be elected by the people, and that’s not what we’re doing so we’re actually in violation of the Constitution right now, in my opinion,” said Judiciary Chairman Mae Beavers, R-Mt. Juliet.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also says, “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.”

The Supreme Court has upheld that the Tennessee Plan is constitutional, but others say the Constitution calls for popular elections like the ones legislators face.

Gov. Bill Haslam, along with Lt. Gov. Ron Ramsey and House Speaker Beth Harwell, declared early this year they want to edit the Constitution to legitimize the plan and eliminate debate once and for all about whether it satisfies the intent of the state’s founding fathers.

Lawmakers have yet to take up any other judicial selection proposals this year, although Republican lawmakers may be running short on time given they want to adjourn in April.

“The Senate is more fixated on these judicial issues than the House is,” said House Majority Leader Gerald McCormick, who said he’d prefer judges not face any sort of election.

“The Constitution clearly says we’re supposed to have elected judges, and I don’t think that’s necessarily good for the state,” he added. “However, the Constitution says it. So we’ve got to either have to change the Constitution or do what the Constitution says. And I think we ought to change the Constitution.”

The Senate measure advanced from committee 5-2 with two senators abstaining. It now moves to the Senate Finance Committee, but it has a long way to go. Any measure changing the Constitution would need approval from both chambers this year, then again before going before the voters in 2014.

“I just want to say as a point of fact that I don’t intend to vote for any more tinkering with the Constitution of the state of Tennessee,” said Sen. Beverly Marrero, D-Memphis, who voted against the bill. “Laws can be changed. When you screw the Constitution, that’s long and involved.”

Casada’s Judicial Elections Bill Shelved

Despite opposition from the governor and both speakers, and a delay in committee, Rep. Glen Casada says he still plans to move forward with a bill requiring the election of judges.

But it’s now on hold for a while.

The bill, HB173, was postponed Tuesday by the House Judiciary Committee. It is scheduled to be brought up again at the final committee meeting of the year.

The issue of judicial selection has elicited diverse opinions from lawmakers, as well as several proposed solutions.

House Majority Leader Rep. Gerald McCormick has said he believes the Constitution plainly calls for judicial elections, but favors the proposal brought by Gov. Bill Haslam, Speaker Beth Harwell and Lt. Gov. Ron Ramsey, which would amend the Constitution to enshrine the current system.

“In the end we’ll vote and whoever has the most votes wins,” he told TNReport Tuesday. “And certainly if I’m on the losing end of that, I’ll take it in stride and keep moving along. It won’t be the end of the Republic. But I think there’s a better way to do it and I don’t think it’s the way [Casada] does it. We’ll see who has the most votes.”

On Tuesday, Haslam urged the committee not to advance the bill.

Casada, R-Franklin, had expressed confidence before the hearing about the bill’s chances. He told TNReport Tuesday, after the committee meeting, he’s not backing off and that the delay affords him the chance to address what he sees as the only credible argument against the bill.

“The only argument on this bill that has any legs – and they’re very small legs – is that it will be costly to elect five Supreme Court judges across the state,” he said. “Rep. [Rick] Womick has come up with an amendment that divides the state into five districts and you run district-wide. That would really cut down the cost. Actually it’s kind of ingenious on his part. It’s got my attention. But gosh, I couldn’t run it just seeing it for the first time.”

He went on, speaking of his decision not to oppose the delay. “I ran a risk by doing what I did. But, with that said, I thought the risk was worthwhile because the only argument that I think is credible, I may have an answer to.”

Plan to Constitutionally Formalize TN’s Judicial Selection Practice Met with Early Skepticism

Tennessee’s most powerful elected leaders want to amend the state Constitution to validate the current and, to some at least, controversial method of appointing high-level state judges.

But some majority-party legislators aren’t so sure that’s a good idea — or that it’ll fly with voters.

Flanked by House Speaker Beth Harwell and Lt. Gov. Ron Ramsey, Gov. Bill Haslam announced Wednesday he’ll press lawmakers to pass a resolution asking voters to approve language to the state Constitution enshrining Tennessee’s present selection practice for judges on the Tennessee Supreme Court, Court of Appeals and Court of Criminal Appeals.

“I believe the current process has worked well during my time in office, and I’ve been pleased with both the quality of candidates and the process for choosing them,” said Tennessee’s Republican governor. “The judiciary is the third and equal branch of government, and we are here to make this recommendation because we believe it is important for our Constitution to clearly reflect the reality of how we select judges in Tennessee.”

If the measure is approved this year — and again in the next legislative session by a two-thirds majority vote in both the House and the Senate — voters would see the constitutional-amendment question on the 2014 general election ballot.

Currently, judges are appointed by the governor, whose choices for the bench are limited to a slate of candidates provided by a selection commission. Those judges, who serve eight-year terms, are subject to yes/no “retention” elections as their first term expires.

But even though that system has been formally ruled constitutional, and is strongly supported among the state’s legal establishment, many lawmakers have trouble getting over the nagging feeling that it really doesn’t gel with the clear wording of the Tennessee Constitution, which states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The state government’s foundational document also declares, “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,” Ramsey said Wednesday.

Speaker Harwell said she, too, supports the so-called “Tennessee Plan,” but has “serious concerns about the constitutionality of the plan at present.”

“I also respect the previous decisions of the courts, which have determined otherwise,” added Harwell, a Nashville Republican. “As the governor stated today, clarity is certainly needed.”

Rep. Glen Casada, a Republican from Franklin and a leading proponent in the Legislature of voters choosing who sits on the Supreme Court and appellate courts, was among lawmakers to express reservations Wednesday about what Haslam and the two speakers are proposing.

Casada said it seems to him elementary and unambiguous that the Constitution requires competitive judicial elections, and not merely an up-or-down vote on a judge well after he or she has been deciding cases.

Casada said he’ll be pushing a direct-election bill for judges this session. He said he’s not opposed to the idea of Tennessee voters getting their say on the current plan in the 2014 election, as proposed by Haslam, Harwell and Ramsey, but believes the electorate ought first to get an opportunity to see what a statewide judicial election would look like.

“We need to go ahead and put it into the code that the judges are elected by the people in a contested election, like the Constitution currently says they should be,” said Casada, who chairs the House Health and Human Resources Committee. If Tennesseans don’t like what they see after that, then they could adopt the plan proposed by Harwell, Ramsey and Haslam, he said.

Vance Dennis, a Republican who serves as secretary of the House Judiciary Committee, said he’s skeptical at this time that the proposal to amend the Constitution will win the two-thirds legislative majorities necessary to ever even get on the ballot.

Dennis, an attorney from Savannah, isn’t a supporter of direct judicial elections. But he said it is clear the system used now is constitutionally suspect in the minds of many.

“Legally, the current plan has been found to be constitutional by the Supreme Court. Lots of folks disagree with that; lots of folks believe that the way that was done was not entirely appropriate,” said Dennis. “It is the law of the land, so what we are doing is legal. But it really doesn’t meet my definition of what an election is.”

Government Operations Committee Chairman Mike Bell, R-Riceville, another supporter of giving voters a greater direct voice in choosing judges, said he harbors “serious doubts” a majority of Tennesseans can be convinced the existing system is the best option available.

Nevertheless, Bell, who has also sponsored a direction-election bill, said he’s willing to stand down and let the governor and speakers pursue their chosen course.

Lt. Gov. Ramsey acknowledged during Wednesday’s press conference that there’s an apparent preference within the GOP “of electing everything, so to speak.” He said, however, that he, Harwell and the governor will embark upon a “sales process” to bring doubtful voters and politicians around.

“To have someone spend multimillion dollars to get elected statewide probably won’t get to where we want to be, anyway,” said Ramsey.

Ramsey said he wants to see “conservative judges who interpret the law and not make the law” assigned to the Supreme Court and appellate courts. So long as Tennessee has “a governor who  appoints people who think that way,” the current system is best for achieving that aim, he said.

Asked to speculate on what would happen if voters ultimately reject the proposed constitutional amendment, Gov. Haslam said he “would still be of the opinion that doing it the way we do now is the best system.”