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

Even though the current system has been ruled constitutional, many lawmakers have trouble getting over the nagging feeling that it really doesn’t gel with Tennessee’s governing document. And they doubt voters approve either.

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.”

13 replies on “Plan to Constitutionally Formalize TN’s Judicial Selection Practice Met with Early Skepticism”

Should this get to the ballot in 2014, killing it is going to be like shooting fish in a barrel.

Haslam and Co. will be asking voters to vote to give up their right to vote.

The opposition’s message is an easier sell: “They are trying to take away your rights and hand control of the courts to a small, unelected, unaccountable group of elite lawyers.

Don’t let them take away your right to elect your judges. Vote NO.”

“Elections, NOT Elites!”

It will lose 60-40 at least.

The people of Tennessee rejected a similar proposed amendment in the 1970s.

They will do so again this time.

Interesting fact: The kind of system backed by Haslam & Co. is also backed by ultra-leftwing billionaire George Soros, who has spent more than $45 million trying to take away people’s right to elect their judges in every state. His organization, “Justice at Stake,” aims to put trial lawyers, a reliable ally of the Left, in control of the judicial selection process.

I wonder how Tennessee conservatives are going to react as they learn how Haslam, Ramsey and Harwell are pushing a plan that originated with liberal Democrats and is backed by the hardcore Left.

Justice at Stake has worked very hard in Wisconsin, where voters currently elect their judges all the way up to the state Supreme Court level, to end judicial elections there and replace it with a “judicial selection process” similar to Tennessee’s. But a poll – commissioned by Justice at Stake – in that state in the fall of 2010 found that 59 percent of Wisconsinites oppose losing their right to elect their judges.

I suspect the number would be higher in Tennessee if a poll, with a properly worded question, was taken here.

I also suspect that most Tennesseans today don’t realize that the constitution says judges are to be “elected by the qualified voters,” but that Democrats in the 1970s stole that right from them by passing legislation to create the current system, just a few years after voters rejected the same plan at the ballot box.

Finally, it is quite the interesting situation to have the Governor, Lt. Governor and House Speaker admit that the current system is unconstitutional. That’s what their proposal confirms – the current system is unconstitutional.

Oh, sure, a special panel of temporary judges once ruled it was constitutional, but no one (other than judges who got their jobs via the current system or lawyers who would like to get jobs as judges via the current system or politicians would would like to control this lever of power) actually thinks “elected by the voters” means “chosen by lawyers, appointed by the governor and serves for 8 years before voters finally get to be involved via a Soviet-style, one-candidate, yes/no retention election.”

Taking away the right to vote? It amazes me that anyone thinks that judges should even be elected in the first place.

What is their job? To render decisions in legal disputes based on the facts of a case and the law. It is not their job to decide cases based on what the electorate wants. It is the duty of the legislature, not the courts, to represent the will of the people. When a law is being consider by a court, what the people want is completely irrelevant (unless all they want is for the court to decide the case in a neutral and dispassionate manner).

Would you really want a judge deciding a case based on what he thinks would get him re-elected? Would you want a judge deciding for the other party because that party contributed a large sum of money to his campaign?

And do you really want “the people” voting on who decides legal disputes? All due respect to the Average Joe, but most people have absolutely no clue who it is they are voting for in a judicial election. And even if they are familiar with the candidate, it is absurd to think that they would know whether or not that judge has faithfully applied the law to the cases he/she has heard (or whether he/she would do so if elected). Doing so would require them to read countless legal opinions.

This is obviously something that the vast, vast majority of voters would never do. Instead, people in judicial election states tend to vote on the basis of party affiliation, race, sex, and even geographic location (e.g. vote for the candidate who lives closest to you). And turnout tends to be horribly low, especially in judicial primaries (the recent one in PA had a turnout of about 17%). Its funny how people don’t care about their “right” to elect judges when they actually have it.

Merit selection isn’t perfect, but at least the nominating commission has the resources to make an informed decision about who they are nominating. And it eliminates the problems associated with contested elections (namely special interest group money and re-election pressures). Finally, most, if not all, merit selection states require some non-lawyers to be on nominating commissions.

[…] Earlier this year the governor and the Tennessee Legislature’s highest-ranking Republicans stood shoulder-to-shoulder in agreement that lawmakers should revise the state’s guiding document to reflect the current practice for assigning judges to rule over the state’s most powerful courts. […]

[…] Ramsey and House Speaker Harwell early this year called for lawmakers to constitutionalize the state’s current practice of selecting judges, known as the “Tennessee Plan,” saying the system has a proven track record […]

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