Selection by a legal oligarchy

The Tennessee Constitution is very clear in its discussion of how appellate court judges and Justices of the Supreme Court of this State are to be selected (Article VI, Secs. 3 and 4):

 

 

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. [Section two provides for the distribution of the Justices of the Supreme Court as evenly as possible between Tennessee's three Grand Divisions.]

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.

 

Some years ago, largely at the behest of then-Lieutenant Governor John Wilder, Tennessee adopted the Modified Missouri Plan, also called the Tennessee Plan, for judicial selection. Under this arrangement, a Judicial Selection Committee composed of attorneys recommended the nominees for our Supreme and inferior courts who were then accepted or rejected by the Governor. Because this system is a blatant violation of a State Constitution which clearly says that judges are to be elected, the system was given the color of law by allowing for a "Yes-No" retention vote on a judge when their constitutionally-mandated term was about to expire. Since there were no campaigns, few voters knew who these judges were unless they happened to be attorneys or political hacks.

 

During the 2008 election, Tennessee Republicans ran partly on a platform of restoring the constitutional method of electing judges. When the GOP won the majority in both Houses of the General Assembly, there was at least some chance that elected judges were possible, especially since the Judicial Selection Commission was about to statutorily expire. When that occurred, Lieutenant Governor Ron Ramsey suddenly changed his tune and decided that perhaps some alternative to elected judges was possible. To be fair to Ramsey, we now know this occurred more because Ramsey didn't have the votes to defeat some form of judicial selection than because he was overly enthusiastic about a non-elected judiciary.

 

Constitutionally correct judicial elections were defeated in no small part because certain Justices of the Supreme Court spoke out publicly against the election of judges. The reason for doing so, it was said, was to keep our judiciary "impartial." While the ethical questions surrounding elected judges are certainly worth debating (and hence so is the matter of whether judges should be elected), the Tennessee Constitution is clear that our judges, including Justices of the Supreme Court, are to be elected by the people. For Justices of the Supreme Court-who swore an oath to defend the Tennessee Constitution-to publicly advocate that the State Constitution be ignored is not only a violation of their oath, but is a disgrace to their profession and station. If these judges really believe that an elected State judiciary poses a serious ethical threat, they should suggest amending the Constitution, not operating completely outside of it.

 

The new Judicial Nominating Commission has been appointed by Lieutenant Governor Ramsey and House Speaker Kent Williams. Tennesseans were told that this new panel would at least be more representative of the people of this State as a whole, and would have fewer attorneys. Of the Lt. Governor's eight appointments, seven are attorneys. All eight of House Speaker Kent Williams' appointments to the Nominating Committee are attorneys. The joint appointee was crime victims' advocate Verna Wyatt, who is not a lawyer. That means that of the 17 members of the Judicial Nominating Committee, 15 are lawyers who can, in theory, dwarf the power of those who are not members of the bar. That is not a panel that is more representative of Tennesseans.

 

The only way to insure that any judicial selection panel is representative of the people is to let the people do the selecting-rather like the Tennessee Constitution says.

_______________

For more info: See the Tennessee Administrative Office of the Courts