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House Should Play Role in Kelsey’s Judicial Confirmation Reform Proposal: Harwell

A proposed constitutional amendment by Sen. Brian Kelsey, R-Germantown, would revamp Tennessee’s judicial selection process so that Supreme Court and appellate judges would be “appointed by the governor with the advice and consent of the Senate.” Undoubtedly, the House would want in on the confirmation process, too, says the lower chamber’s presiding lawmaker.

Speaker of the House Beth Harwell said Wednesday she would insist that the House have a say in approval of judges under a constitutional amendment proposed by Sen. Brian Kelsey, while Gov. Bill Haslam expressed openness to Kelsey’s plan.

Kelsey’s proposal would have state appellate judges appointed by the governor and subject to confirmation by the Senate, similar to the way judges are appointed at the federal level.

“My only negative thing I can say at this point is the House is not going to go for not having approval,” Harwell said while attending a judicial conference in Franklin.

“Under his proposal, only the Senate has to give approval. I would want to have the House included in that.”

Harwell, a Republican from Nashville, said she had not fully reviewed the plan yet but planned to do so. “I think there are some positive things there,” she said.

Kelsey’s plan, filed as SJR475, one of 12 initiatives the Republican from Germantown says he has for the next legislative session, would revamp Tennessee’s controversial form of judicial selection.

His proposal would replace the “Tennessee Plan,” which uses a Judicial Nominating Commission to give names to the governor, who then appoints judges from the list. Judges are then subject to yes-no retention elections.

Gov. Haslam indicated he’s inclined to support the general thrust of Kelsey’s idea, and thinks it should be seriously discussed.

“I’ve actually said in the past if it was my preference, that’s how I would set it up,” Haslam, a Republican, said in downtown Nashville at a district attorneys conference. “I’ve been real clear about a couple of things. First of all, I’m not in favor of elections, and I do think it would be wise to clear it up in the constitution and make it real straightforward to everybody.

“I think there’s a lot of ideas out there being circulated right now. That’s one of those that I think might work.”

Danny Van Horn, president of the Tennessee Bar Association, soundly rejected Kelsey’s idea, which he calls a “faux federal model.”

“In the federal government, you have appointment for life, and you have Senate confirmation,” Van Horn said. “The difference therein lies that once those judges are appointed for life, they’re no longer accountable to elected politicians and the whims of society.

“That’s why we say it’s a ‘faux’ federal model, because in the federal model they get appointed then they have the freedom to render judicial decisions without the fear of not being retained or appointed based on the decisions they made. That’s why what Senator Kelsey has proposed has, at least in our opinion, all the downside of the federal system and none of the upside.”

Kelsey’s plan would have judges serve staggered eight-year terms, with the possibility of re-appointment.

There is disagreement on whether the current Tennessee Plan is constitutional. Kelsey says it is not, yet the Supreme Court has ruled that retention elections are constitutional, and subsequent efforts to have the plan ruled unconstitutional have failed.

There is widely held opinion among prominent politicians, lawyers and judges that the process should not involve outright elections, in spite of the wording of the Tennessee Constitution, which states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” The Constitution declares that judges on the “inferior courts…shall be elected by the qualified voters of the district or circuit to which they are to be assigned.” There have been proposals to alter the Tennessee Constitution to expressly allow for the current process.

The constitutional amendment would be subject to the majority approval of the current Legislature, then need a two-thirds majority approval in the next Legislature before going to the voters in a referendum in 2014.

Kelsey said his plan would tackle two current concerns.

“Here, using the federal system, we would have better quality judges, who are appointed by the governor, with the advice and consent of the Senate, plus we would have the constitutional question resolved,” Kelsey said.

“There are a lot of options that are being floated out there, and that’s why I thought it was important to get this one in writing, so that people can read it and start to talk about it.”

But Van Horn still sees problems with the proposal.

“The problem with the faux federal model is it allows a great degree of politics to creep into who our judges are and whether they’re retained or not,” Van Horn said.

He pointed to “giant swings” on the National Labor Relations Board between Democrats and Republicans.

“I think what business wants, what we’ve heard from business in Tennessee, and what all Tennesseans ought to want, are stable, fair and impartial courts,” Van Horn said. “And if over the next 10-15 years we have judges that are largely Republican in the state, and let’s say the state were to swing back to Democrats, we also would not favor then a giant swing in the judiciary back to having Democrats on the bench.

“The fact of the matter is we don’t think that in the end Democrats and Republicans really view cases that differently in terms of judges sitting on the bench. They’re looking at the facts in front of them. They’re looking at the litigants in front of them, and they’re trying to apply the law. What we don’t want is a system where politics definitely creeps into the selection, evaluation and retention of judges.”

Kelsey’s plan would affect only state Supreme Court and appellate judges. Trial court judges would still have contested elections

Andrea Zelinski contributed to this story.

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