Amendment 2 a Tough Sell at DA’s Conference

At their fall meeting in Memphis last week, the Tennessee District Attorneys General Conference voted to endorse Amendment 2, a proposed change to the state Constitution to grant the governor authority to pick Supreme Court and appellate judges. But the vote was by no means unanimous, and it took two tries to get it over the two-thirds hump that the conference requires for making such endorsements.

“Quite frankly, there was strong opposition from a few,” Wally Kirby, executive director for the DA’s organization, told TNReport. “Some of them feel like all of the judges should be properly, popularly elected — like they are.”

Kirby said that Bill Gibbons, a former Shelby County prosecutor who for the past four years has served as head of the state’s Department of Public Safety and Homeland Security, was on hand and lobbying heavily for the endorsement. Gibbons’ boss, Gov. Bill Haslam, is chairman of the “Yes on 2” campaign.

After an initial vote on Amendment 2 fell short, Kirby said there was a call for a redo. District attorneys from around the state who were absent from the meeting were contacted for their input. He said there was consensus among those present that “this was something that they ought to have input on from all the elected DAs — so phone calls were made to the ones who couldn’t be there because of court appearances or whatever.”

There are 31 elected district attorneys general in Tennessee — and ultimately at least 21 voted to endorse Amendment 2.

Kirby wouldn’t provide names of those who voted against the measure, but he related that some felt Amendment 2 is confusing, and that the campaign in favor of it has been misleading. The “Yes on 2” commercial suggesting that the amendment protects the people’s right to vote for judges is “very deceiving,” he said.

“That is an out-and-out falsehood,” said Kirby. “It does not give you the opportunity to vote for a judge. It gives you the opportunity to vote in a retention election eight years from now.”

Amendment 2 seeks to eliminate the Tennessee Constitution’s declaration that “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

That sentence would be replaced by a series of provisions outlining a system of appointment-and-retention wherein the governor picks all the members of the appellate judiciary and the Supreme Court. The judges would then run unopposed in retention elections as many as eight years later. That new system would look a lot like what is in fact in place now — a system many Republican lawmakers, including a number of Amendment 2 supporters, regard as unconstitutional.

“The way Tennessee has been picking appellate judges is blatantly unconstitutional,” wrote Senate Judiciary Chairman Brian Kelsey, R-Germantown, in an op-ed for the Tennessean last week. Kelsey, who spent the last three years shepherding Amendment 2’s constitutional amendment language through the General Assembly to get it before voters in November, wrote that Amendment 2 will “fix the problem” and give the state a system similar to that used in Washington, D.C. He called the federal method a “tried and true system for choosing judges.”

One change that Amendment 2 adds to the so-called “Tennessee Plan” currently in effect is that the Legislature would have the power to turn down a judicial appointment by the governor. However, if the Legislature “fails to reject” a nominated judge within an allotted time, the appointment would automatically take effect.

In the federal system, a judge must actually win confirmation, not merely avoid an outright rejection vote.

If Amendment 2 fails, leading lawmakers in both GOP supermajority-controlled chambers of the General Assembly have said popular, contested elections for judges will likely be adopted going forward — thus, the voters of Tennessee would henceforth directly decide who serves at all levels of the judiciary.

  • Glen Moody

    Those Haslam boys; they’re a hoot!

  • lostmtn355

    READ the Tennessee CONSTITUTION -now… It says we VOTE for the judges NOW but for the past 40 years they have been USURPING our ability to vote for judges… Did U ‘natives” not know this??????????????????????????????????

    • Mike Warner

      FYI The Tennessee Constitution says “The judges of the Supreme Court shall be elected by the qualified voters of the state.” The article says “Wally Kirby, executive director for the DA’s organization, told
      TNReport. ‘Some of them feel like all of the judges should be properly,
      popularly elected — like they are.’” BUT IN FACT THEY ARE NOT ELECTED they are merely RETAINED by vote of the people. As noted in my comment above the Tennessee Supreme Court has decided their little life time appointments are constitutional, why would they lie?

  • Mike Warner

    1. In over 40 years of “Retention Elections” for judges ONLY 1 has ever been NOT RETAINED. People don’t want to fire someone, they feel sorry for them and so they just vote to retain. To say that gives us ANY say over judges is laughable!

    2. The Federal Government is VASTLY different than State Governments.

    3. There is nothing more political than a political appointment

    4. No office can more directly affect the individual citizen than a judge therefore it is particularly important that they be the MOST RESPONSIVE to the PEOPLE.

    5. Your Amendment 2 violates Article 1 Section 1 of The Tennessee Constitution States in ARTICLE I. [Declaration of Rights] Section 1.

    That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; for the advancement of those ends they have at all times, an unalienable and indefeasible right to alter, reform, or abolish the government in such manner as they may think proper.

    6. The ballot presentation of the amendment is criminally divisive failing to show the two sentences which are deleted by the amendment which says “The judges of the Supreme Court shall be elected by the qualified voters of the state. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article.”

    7. Let’s directly quote Jefferson on judges shall we?

    “The exemption of the judges from that [from election] is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it [control] from them, but to inform their discretion by education.” Jefferson, Writings, Vol. XV, p. 278, to William Charles Jarvis on September 28, 1820.

    “[I]t is necessary to introduce the people into every department of government. . . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them.” Jefferson, Writings, Vol. VII, pp. 422-423, to M. L’Abbe Arnoud on July 19, 1789.?

    • Eric H

      Well done. And of course Haslam and Bredesen are guilty of the illegal “selection” of the entire state supreme court. AND they are both current or former board members of Achieve Inc. Which means our supreme court was “selected” under direct financial influence of Bill Gates.
      If I was them, I would be nervous about a few prosecutors out there with a shred of conscience remaining too.

  • l.p,

    First off, why would any voter feel it is a good idea to give away their ability to do ANYTHING to one person (or a small panel of people)? Answer – because they have been deceived into thinking so, which is what is being done here. And any campaign (and anyone who is involved with it) that would need to rely on such blatant falsehoods for their cause is immediately suspect. Product manufacturers are held liable for false advertising if they deceive the consumer – where is the legal accountability for this, which is of greater and utmost consequence? Sad part is that our spoon-fed society is too lazy to think for themselves and will buy the lie. Shame on you, Fred, for being a part of this sick attempt to disenfranchise the voters from their constitutional right.

    Second, in the thought line of accountability, Not being a life-long native of the state, I had no idea that the state’s constitution read the way it did on the matter. However, I have been here long enough to be witness to the fact – and now know – that those in power willfully and knowingly committed crimes against the constitution they were sworn to uphold. These crimes should be prosecuted, pure and simple. Why aren’t they? Hmmmm, maybe for the same reason Mr. Hooker’s case keeps getting the runaround – the judges know they have not been legitimately placed. They are willing participants in this crime. Who in their right mind would be comfortable facing a judicial system presided over by people of questionable ethics?

    Third – simply, we have seen in the highest courts in the nation how having one person appointing key individuals has worked against the people of this nation and how it creates a fail-safe to protect the other unconstitutional acts of said person. When do we stop skipping merrily down the road toward this dictatorial government?

    Finally, even IF you are a person who still thinks our current governor is peachy keen… is for the people of this state and is honest… even if you think he and his crew are trustworthy… what about the next person? and the one after that? Can you trust the person you haven’t yet met NOT to use this power to suppress and OPPRESS the people of this state? That is a gamble I am NOT willing to make. I vote a loud, resounding NO on Amendment 2 and hope that my faith in our lackluster society might be rekindled by seeing this deception overturned. If it IS, let it be a paving of the pathway toward true justice and a purging of all who willingly participated in these crimes.