Amendment 2 Passage Would End People’s Constitutional Claim on Picking Justices

Should politicians pick Tennessee’s Supreme Court, or should the people?

With the Amendment 2 ballot question, voters are being asked to erase a current provision in the Tennessee Constitution that declares, “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

In place of that sentence would be added language that lays out a system of judicial appointment-and-retention similar to the “merit selection” plan the state has adopted and used now for decades — but with the added feature of getting the Legislature directly involved, rather than leaving the selection process to the governor and a judicial nominating commission.

The current system is sometimes referred to as the “Tennessee Plan” — or the “Modified Missouri Plan,” after the state from which it was cribbed in the early 1970s.

Many have argued over the years that the Tennessee Plan violates the spirit and wording of the Tennessee Constitution — including some of Amendment 2’s influential list of backers, which reads like a who’s who of Tennessee politics, past and present.

Judges Not Among ‘Tennessee Plan’ Skeptics 

The Tennessee Plan has been declared constitutional in a trio of Supreme Court opinions. Supporters of the Tennessee Plan tout those decisions as case-closed evidence that “merit selection,” followed by “retention elections,” is a legal and constitutionally permissible way for the state to go about the business of judicial selection.

“We have three state Supreme Courts, separately over the years, that have said the way we select our judges is perfectly fine,” former Tennessee Justice William Koch said recently in a Tennessean editorial board meeting with Amendment 2 advocates. “There are individuals who have disagreed with those decisions, which they have every right to do. We now realize, because that debate’s been going on for almost 20 years now, that the legal solution, even though it is final as far as the court is concerned, is not final with regard to the public. And so, we’re now turning to a political solution to resolve that issue.”

Those who disagree with the high-court’s Tennessee Plan rulings over the years include Amendment 2’s chief legislative sponsor, Senate Judiciary Chairman Brian Kelsey, R-Germantown, both speakers of the Tennessee Legislature, Rep. Beth Harwell and Lt. Gov. Ron Ramsey, and House Majority Leader Gerald McCormick, as well as many other state lawmakers.

Retrofitting History

Critics of the Tennessee Plan have argued that a historical deception of sorts has been employed in the rulings. Namely, that when the Tennessee electorate ratified the “shall be elected by the qualified voters” language in 1870, by a vote of 98,128 in favor to 33,872 opposed, there was no such thing as a “retention election.” Therefore, retention elections weren’t something contemplated either by the framers of the Constitution or the voters who approved it. Retention elections for judges didn’t arise in the United States until first adopted by Missouri in 1940.

The debate over the Tennessee Plan’s constitutionality has been raging since it was statutorily enacted here in the early 1970s by a Democratically controlled Legislature. Winfield Dunn, the Republican governor at the time, has said he regrets ever signing the bill that replaced direct elections with retention elections.

The lone dissenting justice on the Tennessee Supreme Court’s initial opinion upholding the Tennessee Plan back in 1974 wrote that the “shall be elected by the qualified voters” clause is plain and straightforward and ought to be self-evident to anyone who reads it.

The Tennessee Plan’s elimination of popular elections for judges “is so obviously contrary to the arrangement in our Constitution, as presently written…that it is difficult to explain why it is unconstitutional,” wrote Justice Allison B. Humphreys in State v. Dunn. “How do you explain the obvious? All you can do is to point out the plain clear words of the Constitution and say, ‘read it, and follow it’.”

If Amendment 2 Fails, Expect Direct Judicial Elections 

Sen. Mike Bell, who chairs the Senate Government Operations Committee, is among the Tennessee Plan’s most vocal detractors in the General Assembly. He believes retention elections are a sham, at least under the Tennessee Constitution’s current wording. Bell said this week that if Amendment 2 fails, he will press to re-establish competitive appellate and Supreme Court judicial elections in Tennessee.

“I’ve already begun working on a piece of legislation to define the popular election of judges, because I just can’t get past the fact that the language of our constitution is so simple in Article 6 Section 3, and we’ve created a process that seems to be so convoluted,” Bell, a Republican from Riceville, told TNReport Monday. “Now, if Amendment 2 passes, then the people have spoken, and it’s settled. But if the amendment doesn’t pass, we’re right back to where we are now, and I think it would be a strong message to the Legislature that the people want to go to direct elections.”

House Majority Leader McCormick, R-Chattanooga, told TNReport this week he’s hoping Amendment 2 passes in order to put the controversy over the Tennessee Plan to rest. But if it doesn’t, he said, “I think we immediately need to make plans to just go ahead and do it like the Constitution says to do it, which is to have real elections.”

McCormick, too, believes a rejection of Amendment 2 “will be a clear message from the people of the state” that they want popular elections for high-level judges.

“I think we could gather support just to go ahead and come up with some kind of a plan where we have direct elections,” McCormick said. “I think it’s what we should do, and I think it’s what we would do.”

Amendment 2 supporters like Gov. Bill Haslam and former Gov. Phil Bredesen fear that outcome.

They say letting the people of Tennessee decide who serves on appellate courts and the Supreme Court would give out-of-state special interests too much control over judicial selection.

In-state special interests in Tennessee tend to agree. The “Yes on 2” campaign — which has raised more than half a million dollars to convince voters to leave appellate and Supreme Court judicial selection to the politicians — boasts deep-pocketed support from a broad swath of politically connected industry groups and lobbying associations, like the Tennessee legal establishment, the state’s Chamber of Commerce, police unions, the Tennessee Bankers’ Association, the Farm Bureau and the Hospital Association.

“There are a lot of people, from narrow political perspectives on both sides of the aisle, who would like to see elected judges at these levels, because that’s an opportunity to, say, get your labor judge, to get your business judge, get a judge that you think will vote this way or another on something,” Bredesen said at a pro-Amendment 2 discussion panel in Knoxville with Haslam last month. “I just think that if the system were to continue ahead as it is right now, then the possibility of the Legislature then changing that to direct election is very high.”

“And that’s what I try to explain to people — this is not between the current system and (Amendment 2’s) system,” Bredesen said. “Truly, in my mind, it’s between elected judges and ‘yes’ on this amendment.”

Haslam responded, “I couldn’t agree more.”

“Like Gov. Bredesen put it, it’s not between what we have now and what we’ll get with Amendment 2,” said the governor. “I think that the momentum would swing toward folks who want popularly elected appellate judges.”

Alex Harris contributed to this story.