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Bench Memos

NRO’s home for judicial news and analysis.

Time Running Out in Tennessee



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By the end of this week, it is highly likely that we will know whether Tennessee’s top public officials are behind the Soros-supported Missouri Plan for selecting judges, or a modified federal method.  (The competing measures are SJR 710, passed by the Senate Judiciary Committee, and HJR 830, approved by the House Judiciary Committee.)    


There is some talk that the legislature will pass both measures this session in an effort to punt for a year.  (The “Profiles in Courage” option.)  Any measure that passes this session would have to be approved by a 2/3 vote in both houses next session before being referred to the 2014 ballot, where it would need a majority of votes to prevail.  Achieving a 2/3 vote in any legislative assembly on any issue is a serious challenge.  Getting a majority of voters to approve a constitutional amendment is no easy task, either.  Both tasks will be extremely difficult, if not impossible, if any of the influential factions in this debate mount opposition campaigns. 

Our allies in Tennessee are gaining confidence that a modified federal method is the only way to avoid such a campaign, because it is the only method that can unite the two main factions in the debate.  One faction insists that judicial elections are unacceptable.  The other faction insists that the Missouri Plan is unacceptable.  Many (if not all) members of both factions are open to, if not supportive of, a modified federal method of selection. 

In the last thirty years, no state has amended its constitution to switch from election of appellate judges to the Missouri Plan.  Such measures are almost always defeated by overwhelming margins.  The most recent and high profile example occurred in 2010, when Justice Sandra Day O’Connor and several Soros-funded groups campaigned on behalf of a Nevada ballot measure that was supported by the same sort of coalition that now promotes the Missouri Plan in Tennessee.  We were opposed to that measure, and very pleased when it was resoundingly defeated by Nevada voters.   

In short, a campaign to make a similar amendment to Tennessee’s constitution would face long odds, and even longer odds after an organized and well-funded opposition campaign.  Tennessee’s top public officials have always remained open to a modified federal method.  I hope they walk through that door, because it is the only one that has a chance of leading to a grand bargain.


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