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Diverse Views Among Lawmakers on Judicial Selection

Tennessee lawmakers are split, though not cleanly on partisan lines, on a plan to validate the state’s method of appointing judges. Gov. Bill Haslam and others want a referendum in 2014.

After Tennessee’s top three elected officials put the issue front-and-center last week, opinions about the state’s judicial selection process are still shaking out on Capitol Hill.

And while the issue has divided state legislators, it has not necessarily done so along partisan lines. Opposition to a constitutional amendment has cropped up, in one form or another, from Democrats and Republicans alike, casting some doubt on the likelihood that such a resolution could get the two-thirds vote it would need to make it on the ballot in 2014.

In a joint press conference last Wednesday, Gov. Bill Haslam, Lt. Gov. Ron Ramsey and House Speaker Beth Harwell announced they will be pushing for a resolution that would give voters the chance to weigh in on a constitutional amendment that would enshrine the state’s current process.

A selection commission provides the governor with a list of candidates from which to appoint judges. Once appointed, those judges, who serve eight-year terms, face a yes-or-no “retention” election after their first term.

Ramsey has flatly said he believes the current method works well but that it is not constitutional. While Haslam and Harwell have stopped short of labelling the current process “unconstitutional,” their proposal aims to clear up any public uncertainty.

The issue has forced some Republican supporters of direct judicial elections between a rock and a political hard place. Several Republicans told TNReport last week that they won’t oppose the governor’s efforts to put an amendment to the people. But they also expressed doubts that the current method is the right one or that a majority of Tennesseans will vote to validate it constitutionally.

Last session, Rep. Bill Dunn co-sponsored a bill – HB0958 – that would have required popular elections for judges. That bill’s lead sponsor, Government Operations Committee Chairman Mike Bell, R-Riceville, has said he has doubts that a majority of Tennesseans would vote yes on the governor’s amendment, but that he won’t stand in Haslam’s way.

Dunn, R-Knoxville, said he thinks the Constitution clearly calls for direct elections and that it’s “wrong for us to ignore the Constitution.” If voters were to agree with him, he said, then supporters of the amendment should be open to changing the process.

“The big question is, if the voters reject what they ask to do, then they’re really saying, ‘No, we want to keep the Constitution the way it is,’” he said. “I think to a certain degree we need to go into this whole process saying that if it is rejected then we will start following the Constitution. I think we should start following it right now, but those who have been dragging their feet need to put that on the table.”

Dunn also pushed back against the idea that elections would politicize the judiciary in a way the current system does not, asserting that it would be far easier to corrupt two or three people on a committee than to influence a judge accountable to more than 6 million people in a statewide election. Because of those concerns, and his feeling that the governor’s proposal is the most likely to separate itself from the crowd, he said he’ll be focusing his time and energy on the language of the possible amendment as opposed to alternative legislation.

Other Republicans, though, are fully on board with Haslam, Harwell and Ramsey.

“I am very glad to see the gov and the speakers take the position that they have to amend the constitution, really to conform the current process to the Constitution,” said Sen. Ken Yager, R-Harriman. “I’m going to support that, and I think that’s a good solution to the problem.”

On the other side of the aisle, opinions are no more aligned. Memphis Sen. Ophelia Ford has filed a bill that would require state Supreme Court justices to be popularly elected by voters in various supreme court districts across the state. The bill, SB3714, would require the same of appellate court judges. The accompanying districts for both would be created by the General Assembly.

Ford told TNReport that breaking the state up into supreme court districts for popular elections would allow voters to elect judges they’re better acquainted with and keep candidates from being forced to campaign across the state. She also said she would be pushing for a constitutional amendment, which would mirror the bill.

Leading Democrats said they’re fine with the current process – which has been held up in court – but aren’t so fond of their counterparts’ amendment streak.

“It’s a change of position from some in the majority party to all of a sudden get on this constitutional amendment track,” House Democratic Leader Craig Fitzhugh told TNReport. “So I don’t really understand why all of a sudden we decide to change the Constitution when it’s been something that worked OK. So, I’m sort of scratching my head on that. But we certainly are for the Tennessee Plan as it is now to continue.”

House Democratic Caucus Chairman Mike Turner said costly statewide elections would be the “worst thing we could do” and that the current process is the best one. As a result, he said Democrats could support the proposed amendment, but that he believes the larger trend is a problem.

“It appears to me that it could be something we could support,” he said. “I just have a problem with having all these constitutional amendments on the ballot. I think it’s confusing to the people.”

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