Lieutenant Governor Ron Ramsey and Tennessee House Speaker Beth Harwell have each said that they are going to jointly push for a constitutional amendment which would, if approved, make our present judicial selection process a permanent part of the Tennessee Constitution. The amendment has to pass the General Assembly twice-once in two different sittings, with the second time being by a 2/3rds vote. Harwell and Ramsey might be able to push the proposed amendment through the Legislature in accordance with constitutional requirements. The question no one seems to want to deal with is what happens if the amendment goes to the people in a referendum in 2014 and fails.
We have quoted Article VI, Sections 3 and 4 of the Constitution of the State of Tennessee in this column several times before in op-ed pieces about judicial selection, but so that new readers might understand the constitutional specifics of the situation, here is the relevant section of our State Constitution:
§ 3. Supreme court judges
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.
§ 4. Inferior court judges
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.
Tennesseans have already been subjected to Supreme Court Justices who have openly admitted that they don't want to be subjected to an election (they argue that they don't want to have to raise campaign money and that election would prejudice the bench, but the reality, of course, is that when many Tennesseans look at the record and find out how socially liberal some of these justices are and how activist they have been, they would lose-they don't want to lose) ruling that judicial selection amounts to election, even though many of the State's judges and potentially quite a few trial lawyers are themselves the very subjects of the constitutional argument in question-can you say conflict of interest, boys and girls?
Presuming that the amendment which the Governor, Lieutenant Governor, and Speaker are all supporting meets the constitutional requirements for a 2014 referendum vote (it is the supreme irony that the Legislature is concerned about making sure the Constitution is adhered to when passing an amendment, but will not give electing judges the same consideration, apparently believing that their oath of office allows them to be "cafeteria constitutionalists"), what shall the "YES" campaign put forward as its argument? "Our State Constitution gives you the people the right to elect your appellate judges, but the judges are cowards who can't stand the thought of having to answer for their actions to the people they serve, and we think y'all are too dumb to pick good judges of your own accord, so we'll pick them for you and give you a yes/no vote with no alternative on someone you don't even know."
Sounds like a great way to win a referendum.
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