Bench Memos

Tennessee Republicans Carry Water for Soros and the Trial Lawyers

Tennessee’s constitution states that “the Judges of the Supreme Court shall be elected by the qualified voters of the State.” Despite that clear text, since 1971, judges of the Tennessee Supreme Court have been selected through a lawyer-dominated, commission-based method of appointment known as the “Missouri Plan,” which is the method favored by trial lawyers and George Soros.

The Missouri Plan is used, in some form, in about thirteen states. As the Wall Street Journal noted in an editorial on this topic a few years ago, Soros’s Open Society Institute has spent more than $45 million promoting this method of selection across the country. And no wonder — one of the Missouri Plan’s original architects was Harold Laski, a famous British Marxist upon whom Ayn Rand based the villain in The Fountainhead. As I have explained here and here, this method of selection was (like other progressive programs) designed to give “experts” — in this case, left-leaning lawyers — the bulk of the decision rights in the selection process. Vanderbilt law professor Brian Fitzpatrick has persuasively shown in his scholarly study of the issue that this is precisely what has happened. 

Unsurprisingly, conservatives in Tennessee have been calling for reform. They (reasonably) claim that the current judicial-selection method is unconstitutional and that it favors trial lawyers and bar apparatchiks. They propose that the state should either elect its judges or adopt something more like the federal method of appointment enshrined in the U.S. Constitution.

Fast forward to last week. 

Tennessee governor Bill Haslam, lieutenant governor Ron Ramsey, and state-house speaker Beth Harwell, all Republicans, announced that they have a solution to the ongoing controversy: Amend the Tennessee Constitution to formalize their version of the Missouri Plan.   

Why would these Tennessee Republicans be joining forces with the far left? Perhaps because the special-interest groups that would be entrenched by this plan know how to return favors. Under this plan, at least ten of the 17 commissioners on the selection commission must be lawyers, and the nominating apparatus could be used to reward political supporters and trial lawyers. For example, former speaker of the house Kent Williams appointed Olen Haynes Sr., who won a “Personal Injury Litigator of the Year” award in 2001 and was president of the Tennessee Trial Lawyers Association. Two of Ramsey’s appointments, Tom Lawless and Christopher Clem, were lawyers who gave to his reelection campaign. This sounds uncomfortably close to “Want a seat at this table? Write a check.”   

All in all, at least six of the Judicial Nominating Commission members have ties to trial lawyers, and four of them are personal-injury lawyers.  Under Tennessee’s version of the Missouri Plan, these trial lawyers don’t need to influence a governor’s judicial philosophy or spend millions to elect the right judicial candidate. All they need to do is work behind the scenes to influence the insular commission process.

Before the Tennessee constitution can be amended, the Haslam/Harwell patronage plan must be approved twice by the legislature, once by a 2/3 majority, and then be approved by a majority of voters in the 2014 gubernatorial election. Some conservatives are optimistic that they have the resources and allies in place to defeat it in the legislature this session and return Tennessee to its default of electing judges. Others are hopeful that a compromise can be reached to adopt something like the federal model, which has been proposed by up-and-coming conservative state senator Brian Kelsey. 

JCN has never endorsed elections over the federal method, or vice versa. We have seen both methods work well. But this half-baked Haslam/Harwell gambit will mostly please George Soros and his trial lawyer friends. It needs to come to an end.  


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