Bench Memos

Time Running Out in Tennessee

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. 

By the end of this week, we will probably know whether Tennessee’s top public officials prefer that method of selecting judges, or whether they are behind the Soros-supported Missouri Plan. (The competing constitutional amendments are SJR 710, passed by the Senate Judiciary Committee, and HJR 830, approved by the House Judiciary Committee.)     

There is some talk that the legislature will pass both measures this session in an effort to punt for a year. (The “Profiles in Courage” option.) Any measure that passes this session would have to be approved by a two-thirds vote in both houses next session before being referred to the 2014 ballot, where it would need a majority of votes to prevail. Achieving a two-thirds vote in any legislative assembly on any issue is a serious challenge. Getting a majority of voters to approve a constitutional amendment is no easy task, either. Both would be extremely difficult, if not impossible, if any of the influential factions in this debate mount opposition campaigns.  

A modified federal method is likely the only way to avoid such a campaign, because it is the only method that can unite the two main factions in the debate. One faction — which includes the Soros-funded Proteus Fund and the most liberal members of the Tennessee legislature — insists that judicial elections are unacceptable. The other faction — which includes conservative organizations like Eagle Forum and the Family Action Council of Tennessee — insists that the Missouri Plan is unacceptable. Many (if not all) members of both factions are open to, if not supportive of, amending the state constitution to adopt a modified federal method of selection.  

In the last thirty years, no state has amended its constitution to abandon the election of appellate judges in favor of the Missouri Plan.  Such measures are almost always defeated by overwhelming margins.  The most recent and high profile example occurred in 2010, when Justice Sandra Day O’Connor and several Soros-funded groups campaigned on behalf of a Nevada ballot measure that was supported by the same sort of coalition that now promotes the Missouri Plan in Tennessee. We were opposed to that measure, and very pleased when it was resoundingly defeated by Nevada voters.    

In short, a campaign to make a similar amendment to Tennessee’s constitution would face long odds, and even longer odds after an organized and well-funded opposition campaign. Tennessee’s top public officials have always remained open to a modified federal method.  I hope they walk through that door because it is the only one that leads to a grand bargain.