Tennessee Bar Fight
Busting the monopoly on judicial selection.
Tennessee is moving the dial on how it chooses judges, changing parts of the so-called merit selection method that has governed the state for decades. Under a new plan approved by the legislature on Friday, the lawyers who have dominated judicial selection are getting put back in their place.
The extraordinary influence of the bar is a hallmark of the judicial selection method used by more than two dozen states. Sometimes called the Missouri Plan for its state of origin, a slate of potential nominees is chosen by a judicial nominating commission and presented to the Governor for a pick. Designed to reduce the pull of politics on judges, the plan instead gave power to lawyers who sat on the commissions and pushed state courts to the left.
Under Tennessee's old version of this plan, commissioners were chosen from lists submitted by various legal special interests including the Tennessee trial lawyers association, the district attorneys general conference and the Tennessee bar association. Under the new system, all 17 members of the Judicial Selection Commission would be picked directly by elected officials, rather than by the lawyers groups. The change should reduce the power of a professional guild to control state jurisprudence and reintroduce accountability through elected officials. Read more HERE.
CHANGING THE JUDICIAL PROCESS:
BACKGROUND: The legislature reviews commissions on a regular basis for renewal. The Judicial Selection Commission was up for review last year. This is the Commission made up mostly of representatives of various attorneys groups who select the three nominees for the Supreme Court or the Appellate Courts from whom the Governor chooses to fill an open position. When their term is up, they go on the ballot where the voters only get to vote “yes” or “no” to retain them.
There is only one problem with this -- our State Constitution says in Article VI, Section 3: “The judges of the Supreme Court shall be elected by the qualified voters of the state*.” It seems fairly straightforward – we should either abide by our Constitution or the people should change the Constitution to a preferred method of selection.
Because of this concern as well as other concerns, the legislature did not renew this commission, putting it in a one-year ‘wind down’ meaning it will expire June 30. Last year the debate began on how to change the judicial election/selection process.
For more than 100 years the judges were elected. Then entered partisan politics.
Following the surprise election of Gov. Winfield Dunn—the first Republican elected to the office in 50 years—Democrats began to fear they might lose statewide judicial elections as well.
“The legislation, called the “Tennessee Plan for Judicial Selection and Evaluation,” created a 17-member commission of individuals appointed by the speakers of the House and Senate to evaluate potential Supreme Court and appellate court judges. This Judicial Selection Commission then offers three candidates to the governor who selects one to fill a judicial vacancy.
“The scheme was repealed in 1974 due to its unconstitutionality. In 1977, Tennessee voters were asked to amend the Constitution to legalize the Tennessee Plan. Fifty-five percent of Tennesseans voted against the amendment. Still the constitutionality of the plan is challenged to this date. Despite the public sentiment against the Tennessee Plan and the Plan’s obvious unconstitutionality, the legislature again voted to enact the Plan in 1994, stripping Tennesseans of their right to vote for judges.”
A search of the State Constitution for this important phrase produced the results seen below. The pertinent question becomes, "Why would this phrase not mean the exact same thing every time it is used?"
Distribution of Powers.
Section 15. Vacancies. When the seat of any member of either House becomes vacant, the vacancy shall be filled as follows:
(a) When twelve months or more remain prior to the next general election for legislators, a successor shall be elected by the qualified voters of the district represented, and such successor shall serve the remainder of the original terms. The election shall be held within such time as provided by law. The legislative body of the replaced legislator’s county of residence at the time of his or her election may elect an interim successor to serve until the election.
(b) When less than twelve months remain prior to the next general election for legislators, a successor shall be elected by the legislative body of the replaced legislator’s county of residence at the time of his or her election. The term of any senator so elected shall expire at the next general election for legislators, at which election a successor shall be elected.
Section 3. 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. Every judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the state for five years. His term of service shall be eight years.
Section 4. 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. Every judge of such courts shall be thirty years of age, and shall before his election, have been a resident of the state for five years, and of the circuit or district one year. His term of service shall be eight years.
Section 5. An attorney general and reporter for the state, shall be appointed by the judges of the Supreme Court and shall hold his office for a term of eight years. An attorney for the state for any circuit or district, for which a judge having criminal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district, and shall hold his office for a term of eight years, and shall have been a resident of the state five years, and of the circuit or district one year. In all cases where the attorney for any district fails or refuses to attend and prosecute according to law, the court shall have power to appoint an attorney pro tempore.
Section 13. Judges of the Supreme Court shall appoint their clerks who shall hold their offices for six years. Chancellors shall appoint their clerks and masters, who shall hold their offices for six years. Clerks of the Inferior Courts holden in the respective counties or districts, shall be elected by the qualified voters thereof for the term of four years. Any clerk may be removed from office for malfeasance, incompetency or neglect of duty, in such manner as may be prescribed by law.