Bench Memos

Tennessee Senate Votes on Judicial-Selection Amendment Next Week

The Tennessee senate delayed a vote for one week early today on a constitutional amendment (SJR 2, nicknamed the “Founders’ Plan”) which would abolish Tennessee’s current method of judicial selection, the Missouri Plan. Instead, the state constitution would call for appointments by the governor with confirmation by the legislature, and provide that judges would be confirmed by default if the legislature failed to act in a certain number of days.

The amendment passed with overwhelming bipartisan support during the last session, and must pass with a two-thirds majority this session before going to the voters on the ballot in November 2014. As I explained last year, this amendment is the best way to unite the various factions that have been fighting over judicial selection in Tennessee. Some have a strong preference for the Missouri Plan, which was implemented by state statute in 1971. Others have a strong preference for contested judicial elections, the method of selection originally set forth in the Tennessee Constitution. But many members of both of those factions are supportive of the federal method of selection. I have always believed it to be a principled and politically prudent path for conservatives who value the ideas that animated the framing of the U.S. Constitution. As I explained last year:

During the debates on the U.S. Constitution, James Madison proposed the appointment of judges by the president with the concurrence of the Senate. Madison believed “this would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.” Alexander Hamilton echoed that statement in Federalist 76, explaining that nomination by the chief executive was superior to nomination by a collective body because:

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. 

The Missouri Plan is completely incompatible with those values, and, as a growing body of research shows, it facilitates capture of the judicial branch by unaccountable special interests. It has also been the source of significant controversy in Tennessee. The so-called “Founders’ Plan” strikes me as a very reasonable compromise that would establish a respectable method of judicial selection that rests on a sound constitutional foundation. I hope members of the Tennessee senate vote for it next week and then take strong steps to support its passage in 2014.

UPDATE:  This post was updated to reflect the Tennessee senate’s delay in voting on the amendment.

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