Bench Memos

Big Win in Tennessee

I am very pleased to report that the Tennessee legislature has given overwhelming approval to a constitutional amendment that would replace Tennessee’s current method of selecting judges, the Missouri Plan, with a modified federal method.  

Under the terms of the amendment — which must be approved by a two-thirds vote in the next legislative session and then by a majority of voters in the 2014 election — judges in Tennessee would be nominated by the governor, confirmed by the legislature, and then stand for retention elections every eight years. To avoid logjam or obstruction of judicial nominees, the amendment provides for confirmation by default if a nominee is not rejected by the legislature within 60 days.

This is a significant moment in Tennessee’s history.  The state has been in some form of debate over methods of selection for nearly 40 years, with the debate growing especially intense in the last several years. As I have explained before, there are Tennesseans who feel very strongly that judges should be elected and others who are equally committed to the Missouri Plan. It has not helped matters that the state uses the Missouri Plan despite text in the Tennessee Constitution stating that “judges of the supreme court shall be elected by the qualified voters of the state.”  

So Governor Bill Haslam, House Speaker Beth Harwell, and Lieutenant Governor Ron Ramsey called for a constitutional amendment that would end the debate. After a great deal of discussion and negotiation, a modified federal method emerged as a compromise that garnered bipartisan support from more than two-thirds of the state’s legislators in both chambers.  And unlike so many compromises that take on the worst elements of all sides of an issue, this compromise took on the best elements of the method set forth in the U.S. Constitution by our nation’s Founding Fathers.  JCN is proud to have been a vocal supporter of that principled compromise.   

There is no perfect way to choose judges. To paraphrase James Madison, the best we can hope for, “in a government which is to be administered by men over men,” is that the method we choose includes auxiliary precautions that guarantee “that the private interest of every individual may be a sentinel over the public rights.”  

The amendment adopted by the legislature would do that by giving the governor more responsibility for the nomination process. As Alexander Hamilton argued in Federalist 76, “The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.” And through their role in the confirmation process, Tennessee’s legislators would be able to provide what Hamilton described as “an excellent check upon a spirit of favoritism” in the chief executive, tending “greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

In short, Tennessee is one big step closer to having a method of selection that balances the need for judicial independence with accountability and transparency. Conservatives should be very grateful to Governor Haslam, Speaker Harwell, and Lieutenant Governor Ramsey for taking the state’s constitution seriously and for moving forward with a solid amendment. Of course, the sponsors of the amendment (Senator Brian Kelsey and Representative Jon Lundberg) deserve a lot of credit as well for placing themselves in the line of fire and for dealing with the range of personalities and interests that manifest themselves most intensely when important issues are at stake.


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