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Wade Departure Sets in Motion New Procedures for Picking Supreme Court Judges

Confirmation process required by state’s constitution hasn’t yet been established by Legislature

Just a year after mounting a zealous and richly financed campaign to keep his seat on the Tennessee Supreme Court, Justice Gary Wade announced Friday that he’s retiring from the bench later this summer.

The 67-year-old judge told the Knoxville News Sentinel over the weekend, “I just don’t have as much energy as I used to have.” Wade may take a job as dean of Knoxville’s John J. Duncan Jr. School of Law at Lincoln Memorial University, according to the story.

Wade, who from 2012-2014 served as chief justice of the state’s high court, said last week in a statement through the Administrative Office of the Courts that his resignation will take effect Sept. 8. His current term began Sept. 1, 2014 and was scheduled to expire in 2022. The release offered no reason for Justice Wade’s decision to step down, although a spokeswoman for the court told the Chattanooga Times Free Press, “He just said he thinks it’s time.”

Democrats Likely Losing Control of 5-Member Court

Wade and two fellow Tennessee Supreme Court justices, Sharon Lee and Cornelia Clark, won fresh eight-year terms in retention elections last August after surviving an ouster attempt funded heavily by Lt. Gov. Ron Ramsey’s political action committee.

The three justices, all appointed by Democratic Gov. Phil Bredesen, ran a “coordinated campaign” to retain their seats. They raised more than a million dollars in the effort — much of it from the state’s legal community and the Tennessee Democratic Party.

In a statement on Facebook Friday, Ramsey congratulated Justice Wade on his retirement and called him “a good friend and a formidable opponent.”

“I look forward to this historic opportunity to give Tennessee its first ever Republican Supreme Court majority,” wrote Ramsey.

Wade’s retirement will set in motion an as-yet unsettled and untested new process for selecting and approving new appellate-level judges that was ratified by Tennessee voters last year.

Voters Gave Power to Governor  

Driven by a massive campaign effort bankrolled by a broad coalition of powerful special interests and backed by a bipartisan confederation of political establishment elites, “Amendment 2” won statewide approval in November with about 61 percent of the electorate in favor. Very little was comparatively raised in opposition.

Although Tennessee voters weren’t expressly told so on the ballot, Amendment 2 blotted out a nettlesome sentence that had been part of the state’s foundational government document since 1870: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

Despite that language, the state’s most powerful politicians and judges had for decades prior to Amendment 2’s passage denied that traditionally understood definitions of elections were ever constitutionally mandated for judges in Tennessee. They opted instead to codify a “merit selection” and “retention election” plan similar to that outlined in Amendment 2.

The judicial appointment process now in place is not much different than what’s been used since 2009: The governor will appoint a replacement for Justice Wade from a slate of suggested names sent to him from a “Council for Judicial Appointments.” The council will have 60 days to make its recommendations after formally being requested to do so by the governor.

Confirmation Biases

Once the governor announces his choice to serve on the court, the state’s constitution as altered by Amendment 2 now directs that a legislative confirmation process take place when the General Assembly meets again in January.

There’s a small problem with that, though. The actual procedure by which confirmation is to be deliberated upon, or the appointee rejected, hasn’t yet been established by the General Assembly.

The GOP supermajority-controlled Legislature failed this past session to agree upon or approve a procedure for confirming or potentially rejecting a judicial nominee sent to them by the governor.

Senate Judiciary Committee Chairman Brian Kelsey, the Shelby County Republican who authored Amendment 2, also sponsored a bill this past session outlining a proposed confirmation process for the General Assembly.

But that legislation stalled on the final day of regular legislative business, April 22, when the 99-member House and 33-member Senate couldn’t stop squabbling over how to weight the votes of their members in such a process.

In his “2015 Yearly Review,” Kelsey wrote that the confirmation legislation “awaits final reconciliation next year.”

Appearances of Accountability

The new legislative approval-or-rejection component was in fact a key selling point Amendment 2 backers promoted to convince voters the constitutional rewrite included appropriate checks and balances, as well as “greater clarity and accountability,” in the judicial selection process.

Sen. Kelsey dubbed Amendment 2 a “Founding Fathers Plus” plan when he first started floating it a few years ago. He said it was designed to mimic and improve upon the U.S. federal government’s judicial selection system.

“It is called the ‘plus’ plan because the Senate plus the House are included in confirmation, as opposed to the federal plan, in which confirmation is limited to the Senate,” Kelsey wrote in a 2013 op-ed.

The “Yes on 2” campaign last year played up the lawmaker-oversight aspect of the amendment as well. Amendment 2 was written to introduce “a new layer of accountability by having our elected representatives in the legislature confirm or reject the Governor’s appointees,” the Yes on 2 campaign proclaimed.

But Amendment 2 also contained a provision, now enshrined in the Tennessee Constitution, enabling judges to circumvent legislative confirmation if lawmakers can’t agree on a nominee or a way to approve or deny a governor’s selection — as happened this last session.

“Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session,” the Tennessee Constitution presently declares.

20150726_130100That matter was addressed earlier this year by Tennessee Attorney General Herb Slatery, who wrote that the governor can appoint judges as he sees fit, and if the General Assembly can’t speak with a unified voice then there’s nothing they can do to stop judges from taking a seat on the bench.

“(T)he Legislature may reject an appointee only by taking affirmative action to do so within the specified time limit. Confirmation, on the other hand, may be by affirmative action or by inaction,” Slatery wrote in a March 27 opinion in response to a query by Jon Lundberg, R-Bristol, the Tennessee House’s sponsor of Amendment 2.

Slatery concluded, “The Legislature may act affirmatively to confirm, but if it does not act within the specified time limits either to confirm or reject, the appointee is confirmed by default.”

Under current state law, the new member of the Tennessee Supreme Court Haslam appoints will presumably stand for retention election in August 2016, along with Justices Holly Kirby and Jeff Bivins, who Haslam appointed last year.

Amendment 2 declared that after judges are appointed and confirmed, they “shall be elected in a retention election by the qualified voters of the state.”

The General Assembly hasn’t yet approved statutory language regarding judicial retention elections since passage of Amendment 2. But the Kelsey legislation, Senate Bill 1, would require — as is the case under current law — that judges appointed to fill a vacancy “face a retention election…at the next regular August election following confirmation, and the retention election shall be for the remainder of the eight-year term.”

TNReport is awaiting clarification from the Tennessee secretary of state’s office on the timing of the new Supreme  Court appointee’s retention election.

Gov. Haslam in a statement Friday thanked Wade “for his years of service to Tennessee as a dedicated member of the judiciary.”

“I greatly appreciate Gary’s commitment to justice and his love for our state,” the governor said. “Tennessee will miss his service on the Supreme Court, and I am grateful for his good work.”


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