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3 Of Haslam’s Special Supreme Court Judges Step Down

More than half the members of Gov. Bill Haslam’s hand-picked special Supreme Court have recused themselves from hearing a case to determine the constitutionality of how Tennessee selects appellate and high-court judges.

Special Supreme Court Judges William Muecke Barker, George H. Brown and Robert L. Echols announced Friday they had disqualified themselves from the case because of a perceived conflict of interest. The three have ties to a group that lobbies against judicial elections, which is the issue at the heart of the case.

“Although the undersigned Special Judges have not formed an opinion about the constitutionality of the contested language of the Tennessee constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” reads the Special Supreme Court order.

The three judges have ties to the group Tennesseans for Fair and Impartial Courts, an organization that has lobbied against moves to elect appellate judges.

Former gubernatorial candidate John Jay Hooker argues that judges should be popularly elected by voters, like lawmakers and lower-level judges are. He is suing Haslam and other state government officials for appointing a judge to the Criminal Court of Appeals.

“Why on earth they monkeyed around all this time is beyond me,” said Hooker.

“The problem here is that the fix was in. Hell would freeze over before those three judges would hold the retention election statute unconstitutional,” he continued.

Judges are now assigned to the bench through the Tennessee Plan, a method which requires high-ranking judges be appointed by the governor, then elected by the people to renew their eight-year terms through uncontested “yes-no” retention elections.

Many believe the Tennessee Constitution requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation.

The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “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.”

The recusals leave Special Justice Andrée S. Blumstein and Special Justice W. Morris Kizer to man the court.

Through a spokesman, Haslam’s office issued the following statement:

The governor appointed five attorneys with strong reputations and qualifications. He is disappointed that three of the appointees felt it necessary to recuse themselves based on a perceived conflict of interest, but he understands their decision and appreciates their initial willingness to serve. Their actions are out of an abundance of caution and only substantiate their good faith and character because it is probably unnecessary. No appeal has been filed with the Supreme Court.

Judicial selection in Tennessee has been discussed and analyzed for decades. Having a personal position does not disqualify a judge from serving or applying the law. Judges do that every day.

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Haslam’s Special Supreme Court Picks Have Ties to Group that Lobbies Against Judicial Elections

Two lawyers named to a state panel to decide whether Tennessee’s system for selecting judges meets constitutional muster also lead a group that lobbies against judicial elections.

George H. Brown and William Muecke Barker are both listed as board members of Tennesseans for Fair and Impartial Courts, an organization that fights against “misguided individuals and groups … pushing to replace our merit based system with state-wide partisan elections.”

Brown and Barker, along with three other lawyers, were handpicked by Gov. Bill Haslam to decide a lawsuit brought by Tennessee’s most indefatigable critic of the state’s merit-based system of judicial selection, John Jay Hooker.

“(Haslam)’s thrown down the gauntlet,” said Hooker, a two-time candidate for governor who has been fighting this issue in court through various lawsuits since 1996. “He’s said these judges are my people. He’s kind of got me cut off at the pass.”

Hooker is suing the governor and other high-ranking state elected officials to try and force them to revert back to a system of direct judicial elections. Currently in Tennessee, the governor appoints judges to the state Supreme and other appellate courts, with voters choosing whether to renew their eight-year terms.

A third lawyer Haslam selected to the special Supreme Court, Robert L. Echols, works for the Nashville law firm Bass, Berry and Simms. The telephone number listed on the Tennesseans for Fair and Impartial Courts website rings at Bass, Berry and Simms. H. Lee Barfield, a member of the firm’s state government lobbying arm, is also a board member for TFIC and is past president of the organization.

The results of the case, Hooker v. Haslam, could have significant implications for state lawmakers. Constitutional sticklers have long argued that the state system of merit-selection by appointment followed by yes-no retention elections plainly violates the Tennessee Constitution. They say the mandate that judges be elected is being openly flouted.

However, Tennessee courts have upheld the view that retention elections meet the requirement that judges “shall be elected by the qualified voters,” as the Constitution mandates.

Haslam last month handpicked all five members of the Special Supreme Court to rule on the case, a task he said his staff carefully pondered given that the governor himself is a named defendant in the case. He’s standing by his appointees in the face of a push by Hooker to disqualify the trio for the appearance of bias.

“We could have just gone in there and appointed five people who thought exactly the same way. But I honestly feel like we worked to put together a very good panel,” Haslam told TNReport in Clarksville last week.

Gov. Haslam has made no secret of his own opposition to direct judicial elections in the past, saying he fears it would inject excessive and undue political influence into Tennessee’s judicial system. He asked lawmakers early this year to constitutionalize the current appointment-driven practice of selecting judges to clear up any confusion.

When that plan began to fall through, Haslam backed another constitutional amendment proposal to model the state’s system of selecting judges after the federal system, with the Legislature getting an opportunity to confirm judges the governor appoints. The plan now awaits approval from the General Assembly before it can be put to the voters in a referendum in 2014.

Sen. Mike Bell, R-Riceville, who argues the state is currently stepping outside constitutional bounds by appointing judges, said he is wary about the governor’s appointments to the special court.

“I think it would have been nice if the governor maybe would have gone out of his way to choose somebody who didn’t have the appearance of bias. Not that those men are biased, but it leaves the appearances there because of their connections,” he said.

Tausha Carmack Alexander, TFIC’s lobbyists at the statehouse, said the group would rather see anything in place besides “direct partisan elections.”

“We believe that forcing appellate judges to run in contested elections is very costly, and it will introduce more politics into the judiciary,” she said. “Everybody wants to ensure that we have courts that are fair and impartial. You can look at other states — West Virginia, Alabama — where it costs millions of dollars to run in some of the Supreme Court races. We just don’t think that is the way to go for selecting an appellate judiciary member.”

“There is plenty of data out there that indicates how costly (statewide judicial elections) can be, and how political it can be,” Alexander continued.

Hooker is now waiting for Brown, Barker and Echols to respond to his request they recuse themselves because their “impartiality might reasonably be questioned.” A written answer is due “promptly,” according to new court rules.

Barker, also a former Supreme Court Chief Justice who now practices law in Chattanooga, declined to comment on his ability to be impartial when ruling on this case.

“I just don’t think judges ought to be talking about a matter that sits before the court,” he told TNReport, adding that his opinion will be shown in his upcoming response to Hooker’s request.

Attempts to reach Brown, who specializes in mediation and arbitration in Memphis, and Echols Wednesday morning for comment were unsuccessful as of this posting. (TNReport will update this post if we hear back from them.)

The tricky part is how to define “reasonable,” said Judge Alan Glenn, chairman of the state Judicial Ethics Committee.

“There are certainly hundreds and probably thousands of cases where there could be the appearance of a conflict,” said Glenn, who is also an appellate court judge. “The catchall consideration has got to be where the judge’s impartiality can reasonably be questioned, and that’s where minds can differ.”

Three Supreme Court judges recused themselves from the case on July 27, just as Supreme Court Justice Cornelia Clark and Justice William Koch had on July 16. That same day, Haslam appointed the panel, and the Court of Appeals issued its ruling on Hooker’s case, finding that the Tennessee retention election practices are constitutional. Hooker has until late September to ask the Special Supreme Court to hear his appeal to the Appellate Court’s decision.

Andrea Zelinski and Mark Engler contributed to this report.

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Courting Conflicts

Most defendants would love to have the power to handpick judges assigned to decide a lawsuit against them. Gov. Bill Haslam, it seems, finds himself in just that enviable position.

Late last Friday afternoon, Haslam announced he had chosen the members of a special ad hoc panel. The panel will serve as a temporary state Supreme Court to rule on a lawsuit that names the governor as a defendant.

The move became necessary after all the the sitting members of the Tennessee Supreme Court recused themselves from hearing the case of John Jay Hooker, on behalf of himself and others, v. Governor Bill Haslam, et al. The lawsuit on appeal is a challenge to the constitutionality of Tennessee’s “merit selection” appointment and “retention election” system of picking appellate and Supreme Court judges.

Asked at a press conference this week if he’d struggled with the potential appearance of a conflict of interest, Haslam indicated his administration had indeed discussed the matter and had decided that he was required by law to appoint the panel.

“We talked with our legal counsel about that,” the governor said after a higher education discussion at Scripps Network in Knoxville Tuesday.

“If the existing Supreme Court recuses themselves, somebody has to appoint them and that’s the governor’s role under the Constitution in the state of Tennessee,” he said.

The matter has been simmering in the background for years, with Hooker, an outlying but ever-enduring fixture on Tennessee’s political scene, tending the flame. The subject of judicial elections has taken on renewed prominence in the past couple years, as many majority-party Republican lawmakers have said they are committed to reconciling the practice of selecting judges with the state Constitution, which they see as at odds with one another.

Hooker told TNReport this week he knew from the get-go Haslam would have to choose members for the special court. But he says he has the right to question and challenge those appointments, for example that of William Barker, a retired Supreme Court justice.

“How can he possibly be impartial in the matter?” Hooker said. “He’s got a vested interest. What is the difference in his interest as a former member of the Supreme Court or the sitting member on the Supreme Court?”

The court system so far has no timeline for when the case would be heard, according to Casey Mahoney, the court system spokeswoman.

House Speaker Beth Harwell is also named in the lawsuit. Her office says there’s nothing worrisome about the governor appointing judges on the court to hear the case.

“It is a statutory duty of the governor to appoint a special state Supreme Court in instances such as this, and literally no one else in the state is given such authority,” said spokeswoman Kara Owen. “There is no reason to expect that this panel would be anything but fair and impartial in the proceedings.”

The outcome of the legal decision could be paramount in the ongoing fight over whether the state is truly “electing” judges.

High-ranking members of the judiciary are selected by the governor who then face “yes-no” retention elections to renew their eight-year terms. Critics of the current system known as the “Tennessee Plan” say the Tennessee Constitution calls for judges to be “elected,” much like lawmakers and lower-level judges are.

The state Constitution says, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “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.”

Haslam and the top two Republican legislative leaders are resolute opponents to high-ranking judges facing popular elections. The trio rallied around the idea of rewriting the constitution to reflect how judges are currently selected, but the Republican-led legislature was split on the idea and ultimately dumped that proposal, SJR184, late in the legislative session.

Instead, they agreed on SJR710, which stipulates that the General Assembly should first have to approve the governor’s judicial appointees, then send the judges on their way to retention elections.

House Republican Caucus Leader Debra Maggart voted in favor of legislative confirmation, although attempts to reach her for comment on the lawsuit were unsuccessful Wednesday.

Courtney Rogers, a Republican running against Maggart in Sumner County, maintains that the state ought to bring itself in line with a literal reading of the constitution and require judges to face popular elections, said her spokesman Jeff Heartline. Although he said she had no preference yet on how the constitution should assign judges to the bench.

“If we were following the Constitution, these questions wouldn’t come up,” said Rogers’ spokesman Jeff Hartline, when asked what Rogers thought about the lawsuit. “Let’s follow the constitution and let the people decide.”

The issue has divided Republicans in the Legislature and on the primary campaign trail. Sen. Doug Overby, R-Maryville, has stressed that people shouldn’t employ their own literal reading of the state’s guiding document to justify judicial election. They should instead look to the Supreme Court’s guidance on matters of interpretation.

Andrea Zelinski and Itzel Gonzalez contributed to this report.

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Effort to Legitimize ‘Tennessee Plan’ Hits Dead End

The future of how top judges in Tennessee are assigned to the bench is in limbo now that a plan asking voters to formally endorse the status quo died on Capitol Hill this year.

Despite vocal support from the state’s three most powerful elected Republicans, lawmakers abandoned a plan to run the current judicial selection process by voters. Instead, the Legislature at this time appears to favor giving itself a confirmation role on judicial appointments, as is done at the federal level.

Lawmakers are looking to end debate once and for all about whether the state is following the intent of the Tennessee Constitution, which calls for judicial elections.

The Legislature considered several plans this year, including one that would require popularly electing judges. The only proposal that gained traction was an amendment to establish a new system giving the Legislature the authority to reject judges the governor wants to appoint — an effort that would ultimately need voter approval. The effort to legitimize the state’s current practice — supported by both chambers’ GOP speakers and the governor — failed in the House.

“I voted for both of them to keep them alive so we can try to get something on the ballot on 2014,” said Sen. Mike Bell, R-Riceville, the Government Operations Committee chairman who said he’d prefer popularly electing judges.

“I want to do all I can to put pressure to see that we come up with a Constitutional amendment…(so that) the people have the final say on how we choose our judges,” he said.

Gov. Bill Haslam said he supports the new plan which lets the Legislature approve judicial candidates — although he prefers sticking with the current plan. But the governor unequivocally opposes voters directly electing judges.

Meanwhile, many prominent legislative Republicans, including Lt. Gov. Ron Ramsey and House Majority Leader Gerald McCormick, have said it is clear to them the state Constitution in fact does explicitly require direct and contested judicial elections. And yet they, like Haslam, oppose statewide judicial elections. They instead want to amend the state constitution to erase the seeming disconnect between what the Tennessee Constitution mandates and what the state currently does.

Lawmakers, judges and constitutional scholars have argued for years over whether the yes-no “retention” elections meet the spirit and letter of the Constitution.

The Constitution says, “Judges of the Supreme Court shall be elected by the qualified voters of the state,” and adds that “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.”

The state’s powerful legal establishment likes things the way they are, and argues that as long as lawyers and judges are fine with the system, elected politicians ought to leave it alone.

“We never believed, we still don’t believe, that the Constitution has to be amended,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “They ought to keep that and not be experimenting with other ways of doing it.”

The wheels could come off of the state’s judicial selection machine if lawmakers push too hard for change, said Ramsaur. So far, lawmakers have already shortened the lifespan of the Judicial Nominating Commission which now recommends judges for the bench. The panel is set to disband, by July 1, 2013.

Without the commission, Ramsaur argues, there’s no specific provision for exactly how to seat judges.

Bell says he’ll likely extend the panel one year at time to keep the cogs in the machine moving so long as lawmakers advance the constitutional rewrite. He said, however, that he’s leaving open the option of dissolving the commission should the measure stall.

Haslam, 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 and the state ought to make sure its guiding document agrees with current practice.

The Tennessee Plan requires the governor appoint Supreme and Appellate court judges from a list of recommendations from the nominating commission. Those judges then face yes-no retention elections to renew their eight-year terms.

Their plan, SJR183, to constitutionally legitimize the current practice passed the Senate 21-9 but never made it to a vote on the House floor.

Instead, lawmakers favored refashioning a portion of the state constitution to resemble the federal practice of picking judges, namely where the President appoints and Senate confirms.

SJR710 lets the governor handpick top judges who then need to be OK’d by the General Assembly. Those judges would then be subject to yes-no retention elections to renew their terms.

The plan passed easily in both chambers, with a 70-27 vote in the House and 22-9 win in the Senate — about two-thirds of both chambers. Haslam says he’s behind the plan, but admits he’s worried giving lawmakers the opportunity to block the governor’s appointments, as is done in Washington to presidential appointments, which can lead to political games.

“In some ways you can say the federal system has worked well. On the other hand, it hadn’t sometimes when you’ve had one party hold up the President’s nomination for purely political reasons or vote against them for purely political reasons,” said Haslam. “In designing how the legislative confirmation process would work, I want to make certain that we have a process that is as free from politics as possible.”

Because the measure seeks to edit the Constitution, lawmakers will need to approve it again with two-thirds majority before the 2014 general election where voters will have the final say. If voters reject the change, Haslam says he wants to continue using the Tennessee Plan without skipping a beat.

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Judicial-Selection Measures Pass on First Run Through TN Senate

Two proposed constitutional rewrites changing how Tennessee selects Supreme Court and appellate judges have been approved in the state Senate.

Both measures have a long way to go before becoming law, but the competing proposals hint at divisions within the Republican Party, the Legislature and the public at large as to how the state should choose its most powerful judges.

The upper chamber on Monday voted 23-8 to revamp the current system by enacting a new system that gives the Legislature authority to approve or reject judges the governor appoints, much like the federal system where the president appoints and the Senate confirms.

Under the plan sponsored by Sen. Brian Kelsey, R-Germantown, judges winning approval from the General Assembly would later face voters in up-or-down, non-competitive yes-no retention elections.

“What we have is a resolution that preserves the best part of our current system, builds upon what our founding fathers drafted and adds new pieces that improve upon what our founding fathers drafted,” said sponsor Sen. Brian Kelsey, R-Germantown.

The federal system is flawed, said retiring Sen. Andy Berke, D-Chattanooga, who voted against Kelsey’s measure.

Berke, vice chairman of the Senate Democratic Caucus, said lawmakers by habit and nature tend to politicize whatever they touch. To purposely put them squarely in the middle of the state’s judicial-selection process would be to invite “mischief,” he said.

“We are officially detracting from the governor’s power in the appointment of judges and adding power to the Legislature,” he said on the Senate floor Monday night. “The one thing that we will do if the General Assembly is given this power is play politics.”

Last week, the Senate voted 21-9 on SJR183 to grant express authority for the Legislature to determine how the state empanels judges, which now involves the governor picking them from a list provided to him by a selection commission. Those judges later facing retention elections to renew their eight-year terms. The governor and the two Republican speakers prefer this system, known as the “Tennessee Plan.”

Lt. Gov. Ron Ramsey, a Republican, has said he believes that over time the current system is most likely to generate justices who are conservative in outlook.

Earlier this month, a proposal to require judges face popular elections died in committee.

Passage in the Senate is one of many in a long list of milestones needed to formally ratify a proposed amendment to the state’s guiding document. Both measures still need approval by House lawmakers this spring before the Legislature call it quits for the year and begins campaign season.

A supermajority of lawmakers — two-thirds — will have to OK the proposal again before the 2014 election in order to put the change to the voters, who get the final say.

The call for rewriting the Tennessee Constitution comes after years of debate over whether the state is currently following the spirit and intent of the document’s drafters, who wanted judges to face elections.

The Constitution states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “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.”

Mark Engler contributed to this report.

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Plan to Elect Judges Fails

As the battle brews over how to pick the state’s most powerful judges, plans to make them earn their seat on the bench through popular elections narrowly failed in a House committee Wednesday.

The House Judiciary Committee voted 7-7 on a plan to elect Supreme and appellate court judges, one vote shy of the majority vote necessary to advance the plan in the Legislature.

“I’m disappointed, to say the least,” said bill sponsor Rep. Glen Casada, who contends the current practice flies in the face of the Tennessee Constitution. The constitution says judges of the Supreme, Circuit and Chancery Courts, and other inferior courts “shall be elected by the qualified voters of the State.”

“The constitution governs how we do business and do public policy in the state,” said Casada, R-Franklin. “To be out of compliance is wrong. If you can’t comply with the most basic, how can you trust us to comply with other parts of the law as well?”

The narrow vote shows there is still distinct division in the GOP-run Legislature over the best way to go about choosing who should sit on the bench in the state’s highest courts.

The measure, HB173, would have required high-ranking judges to face popular elections beginning in August 2014 instead of the yes/no retention elections they now face every eight years.

The Senate considered amendments to the state Constitution earlier Wednesday, but isn’t expected to vote on the plans until next week.

SJR183 would allow the General Assembly to solidify the current practice of the governor appointing judges who later face retention elections, called the Tennessee Plan.

SJR710, on the other hand, would require the governor’s judicial appointments to win approval from the General Assembly. Those judges would also face retention elections to renew their terms.

Much of the debate sparks from varying interpretations of the Constitution and whether a “retention election” heeds the call in the state’s guiding document for an “election.”

“Let’s get away from this myth that what we have is not an elected system,” said Allan Ramsaur, executive director of the Tennessee Bar Association. “We do elect judges, we just don’t have contests which lead to partisanship and big money influence.”

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Haslam Open to Altering TN Judicial Selection — But Stands Firm Against Direct Elections

Gov. Bill Haslam indicated this week he’s not wedded solely to the idea of rewriting the Tennessee Constitution to legitimize the state’s current method of selecting judges.

The governor said he’s amenable to implementing a system that mirrors the federal government’s judicial-selection practice involving legislative confirmation of judges nominated by the chief executive.

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.

“What the speaker and lieutenant governor and I came out with and said was we don’t think going to popular election of judges is the right plan,” Haslam said Thursday. “We also felt like the state’s current plan is working well, although there was an acknowledgment that there is a lack of clarity with what we are doing now and what the Tennessee state Constitution says.”

Judges for the Tennessee Supreme Court and other appellate courts are chosen by the governor from a slate of candidates provided by a selection commission. They later face yes-no “retention” elections to renew their eight-year terms.

Many believe the Tennessee Constitution unambiguously requires that judges at all levels be elected, even though the Legislature and the Supreme Court have chosen not to follow that interpretation. The Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also states, “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,” Lt. Gov. Ron Ramsey told reporters back in January when he, Gov. Haslam and House Speaker Beth Harwell announced they favored trying to convince Tennessee voters to put a stamp of constitutional approval on the status quo.

Haslam told reporters after a meeting with the Tennessee Board of Regents in Nashville Thursday that he has people “working around, right now, trying to find some consensus around something that enough people can get behind.”

The Legislature is split three ways on the issue: constitutionalize the way the state currently selects judges, rewrite the Constitution to allow the governor to appoint and the General Assembly confirm judges, or keep the Constitution as-is and begin electing judges by popular election.

Haslam maintains he is opposed to electing judges, and he said in January he’d prefer the state bring the state Constitution in line with the current practice.

A Senate committee this week advanced a measure that calls for rewriting a portion of the state Constitution to mirror the federal practice for selecting judges. The proposal, SJR475, calls for the governor to appoint judges who are then OK’ed by the General Assembly.

Any changes to the Constitution would require a simple majority approval from the Legislature this year but would call for a two-thirds vote again before going before the voters in 2014.

Given that lawmakers are fairly split on which direction to go, a super-majority backing could be difficult to earn.

David Barton, a conservative author, historian and Christian activist, says Tennessee is among a number of states where the judiciary has over time developed an unhealthy immunity from democratically enforceable checks and balances.

So-called “merit selection” judicial appointment arrangements like the “Missouri Plan,” after which the “Tennessee Plan” was patterned, are lauded by legal establishment professionals who say such systems “remove politics” from the process of picking the most qualified higher-court justices to handle appeals.

On the contrary, what merit selection systems really tend to do is “move judges away from the people,” said Barton, who visited Capitol Hill this week to discuss his views on judicial reforms and constitutionalism with state lawmakers and conservative activist groups, among them the Tennessee Judicial Reform initiative, Faith and Freedom Coalition-TN, the Black Robe Regiment, and 9-12 Project Tennessee.

The further removed members of the judiciary are from the electorate, “the more problems you are going to have — the less accountability you will always have,” said Barton, who is founder and president of Wallbuilders, a group “dedicated to presenting America’s forgotten history and heroes, with an emphasis on the moral, religious, and constitutional foundation on which America was built – a foundation which, in recent years, has been seriously attacked and undermined.” By way of explaining the meaning of the organization’s name — which comes from the Old Testament Book of Nehemiah — the overview page at proclaims, “We have chosen this historical concept of ‘rebuilding the walls’ to represent allegorically the call for citizen involvement in rebuilding our nation’s foundations.”

Barton rejects the notion that having elected leaders like the governor appointing judges satisfactorily fulfills the constitutional mandate that judges be accountable to the the electorate.

“If you have an uprising out here with the people, you have three or four levels to buffer it down, and by the time it gets to (judges), it’s really not an issue,” said Barton. “That makes the same sense as saying bureaucrats are accountable to the people because we elect the governor and the governor appoints the bureaucrats: No, it doesn’t work that way.”

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Legislative Confirmation for Judges Advances

There’s little consensus on Capitol Hill over how the state should pick its highest ranking state judges, and the plot just got a little thicker.

The Senate Judiciary Committee advanced a plan Tuesday to change the state’s guiding document to reflect the federal practice for choosing judges, despite calls from top Republicans leaders to reinforce the state’s current practice of appointment by the governor.

Under SJR475, the governor would nominate judges for the Supreme and other appellate courts, and the Senate and House would confirm them.

The governor currently chooses those judges, who are subject to yes-no retention elections by voters every eight years, a process dubbed the “Tennessee Plan.”

Debate boils down to a long-running disagreement over whether the state currently follows the state’s Constitution.

“In my view, the Constitution says that the judges will be elected by the people, and that’s not what we’re doing so we’re actually in violation of the Constitution right now, in my opinion,” said Judiciary Chairman Mae Beavers, R-Mt. Juliet.

According to the Tennessee Constitution, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” It also says, “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.”

The Supreme Court has upheld that the Tennessee Plan is constitutional, but others say the Constitution calls for popular elections like the ones legislators face.

Gov. Bill Haslam, along with Lt. Gov. Ron Ramsey and House Speaker Beth Harwell, declared early this year they want to edit the Constitution to legitimize the plan and eliminate debate once and for all about whether it satisfies the intent of the state’s founding fathers.

Lawmakers have yet to take up any other judicial selection proposals this year, although Republican lawmakers may be running short on time given they want to adjourn in April.

“The Senate is more fixated on these judicial issues than the House is,” said House Majority Leader Gerald McCormick, who said he’d prefer judges not face any sort of election.

“The Constitution clearly says we’re supposed to have elected judges, and I don’t think that’s necessarily good for the state,” he added. “However, the Constitution says it. So we’ve got to either have to change the Constitution or do what the Constitution says. And I think we ought to change the Constitution.”

The Senate measure advanced from committee 5-2 with two senators abstaining. It now moves to the Senate Finance Committee, but it has a long way to go. Any measure changing the Constitution would need approval from both chambers this year, then again before going before the voters in 2014.

“I just want to say as a point of fact that I don’t intend to vote for any more tinkering with the Constitution of the state of Tennessee,” said Sen. Beverly Marrero, D-Memphis, who voted against the bill. “Laws can be changed. When you screw the Constitution, that’s long and involved.”