Bench Memos

Bipartisan Support for Judicial Selection Reform in Tennessee

Tennessee’s constitution unambiguously states that “the Judges of the Supreme Court shall be elected by the qualified voters of the State.” Despite that text, in 1971 the state’s legislature adopted a form of selection commonly known as the “Missouri Plan,” the lawyer-dominated, commission-based method of appointment favored by trial lawyers and far-left organizations funded by George Soros. And since then Tennesseans have been locked in an intense fight dominated mainly by two factions:  Those who insist on the Missouri Plan, and those who insist on judicial elections.

A few years ago we urged Tennesseans to consider a sensible third way: a constitutional amendment sponsored by conservative state senator Brian Kelsey which would abolish the state’s Missouri Plan once-and-for-all, replacing it with an advice/consent process, like the one set forth in the U.S. Constitution, while still requiring judges to stand for a yes/no “retention” election at the end of their term. The proposed amendment also seeks to prevent the sorts of nomination logjams we see at the federal level by giving a nod to a feature originally proposed by James Madison: the governor’s nominees would be confirmed by default if not affirmatively rejected by the legislature within 60 days of nomination.  

We have never shied away from our support for contested judicial elections — a form of selection that has worked well for nearly half of the states — but we also recognize the brilliance of the method of selection codified in the U.S. Constitution by our Founding Fathers. Why not import it to Tennessee if it would settle the debate and abolish the Missouri Plan?

We were thrilled to see Senator Kelsey’s proposed amendment pass through both chambers of the state’s legislature with overwhelming support, and the endorsements of Governor Bill Haslam, Lt. Governor Ron Ramsey, House Speaker Beth Harwell, and a broad range of organizations from the Tennessee Farm Bureau to the Tennessee Chamber of Commerce and the Beacon Center of Tennessee.  Subsequently, the legislature also took the step of allowing the state’s nominating commission to expire, signaling a death blow for the Missouri Plan in Tennessee, and giving the governor the authority to select nominees without the encumbrance of a mandatory nominating commission dominated by special interests.

The proposed amendment is now before Tennesseans, who will decide this November whether to make it part of the state constitution. And, as you can see from the “Yes on 2″ campaign’s television advertisement below, the amendment’s base of support continues to grow.   

https://youtube.com/watch?v=mCjmXkxgTYk

Updated 10/16/2014

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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