Bench Memos

Tennessee Judicial Selection Update

After a busy few weeks working on the Obamacare case, I want to draw some attention back to another matter of importance to conservatives. Public officials in Tennessee continue to debate whether the state should abandon its Missouri Plan method of judicial selection in favor of something more like the federal method. As I reported several weeks ago, some Republicans in Tennessee have been carrying water for the trial lawyers and Soros-funded special interest groups who would prevent that from happening.  

Thankfully the situation has improved. The most encouraging news came last week when the state’s senate judiciary committee approved a constitutional amendment sponsored by Senator Brian Kelsey. If adopted, judges would be appointed by the governor with the advice and consent of the legislature. The committee also approved a companion piece of legislation which would allow the state to abandon its Missouri Plan while the process of amending the state constitution plays out. The virtue of the Kelsey amendment is that it would allow the people of Tennessee to hold the governor accountable for poor judicial appointments, or credit him for the good ones. That structure has worked well at the federal level for more than 200 years, producing judges of the highest quality while forcing senate and presidential candidates to answer public questions about their judicial philosophy. In contrast, the current method of selection, the Missouri Plan, empowers an unaccountable commission of lawyers, diffusing decision-rights so that no one is truly responsible for the important act of choosing a judge. The structure is plainly inconsistent with the principles the framers established in the U.S. Constitution, and it comes closest to the method of selection proposed by Benjamin Franklin as a joke for the entertainment of the rest of the convention delegates. Governor Haslam has endorsed the federal method and I am told that key legislators, including Lieutenant Governor Ron Ramsey and House Speaker Beth Harwell, support the concept as well. These leaders deserve credit for promoting reform, and their constituents should encourage them to continue on this path. Unfortunately I am told that the situation in the capitol remains quite fluid, despite these positive signs.  

Some Tennessee Republicans continue to side with trial lawyers and liberal special interest groups. I suspect they are unaware that so-called “merit” selection is a favorite policy of liberals, or that, as the editors of the Wall Street Journal have noted, George Soros invests heavily to promote that method of selection across the country.   

One rumor I have heard from several sources suggests that the liberal Tennessee Bar Association and the state’s chief justice are pinning their hopes for preserving the status quo on Republican Representative Jon Lundberg.  I have heard that the same is true of the governor’s chief legal counsel, who has apparently been freelancing on the issue.  

Representative Lundberg may have good intentions, but he is misguided. One of his proposals is so poorly drafted that one has to wonder if he reviewed it himself. It would give the legislature unlimited authority to design and establish a commission to nominate judges. If some future legislature wanted the AFL-CIO, the Earth Liberation Front, and the trial lawyers to nominate judges in Tennessee, no one could prevent them from doing that. Then, in order to stay in office, a judge would have to obtain a “satisfactory job performance evaluation.” The proposed amendment does not define the terms “satisfactory,” “job performance,” or explain who or what entity would undertake the performance evaluation. So use your imagination when trying to discern who could end up with the authority to evaluate and fire judges.  

By rejecting elections and the federal method, and seeking to preserve the current commission-based method at all cost, the TBA and its supporters simply increase the probability that conservatives will be forced to wage an intense campaign to defeat any amendment that survives the legislative process.    

It is hard to tell how the situation will play out. Hopefully other legislators will get behind Governor Haslam and the legislative leaders who have endorsed the federal method of selection. In the interim, we will be working on the issue and will keep you informed.

Update:  This post previously referred to the Chief Justice as Janice Holder


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