Tennessee House to Vote on Judicial-Selection Amendment

The Tennessee senate recently gave overwhelming, bipartisan approval (29–2) to an amendment to the Tennessee constitution that would put in place a modified version of the federal method of selecting judges. The amendment is now before the state house, where it should be up for a final vote very soon.

Once the amendment passes the house by a two-thirds majority, as it is expected to do, it must then be approved by the voters in the November 2014 general election. If it were to fail, the governor and the state legislature would immediately find themselves back in the midst of a toxic fight over how the state’s appellate judges ought to be selected. At that point, it is most likely that the state would simply revert to the method described in its constitution, electing appellate judges, as it does trial judges.

But conservatives should not take an outcome of contested elections for granted because some local organizations are so terrified of contested elections that they would do whatever they could to preserve the current Missouri Plan (known locally as the “Tennessee Plan”) which gives a lawyer-dominated committee the exclusive power to nominate judges. A handful of public officials have also been misguided into believing that judicial elections would be bad for the local business climate, and may fight to keep the Tennessee Plan, as inconsistent as that may be with their oath to uphold the state constitution, which expressly states that judges “shall be elected.” While those fighting to keep the Tennessee Plan would probably lose and contested elections would result, there is no reason for conservatives to take this real risk while provoking a costly, distracting, and divisive fight.

Not surprisingly, most individuals and organizations across the political spectrum have already concluded that the modified federal method is superb, or, at a minimum, that it is a good enough method to avoid risking being blamed from one side or the other if the state gets stuck with either elections or the Missouri Plan.

JCN is perfectly comfortable with judicial elections, and will take the strongest steps possible to support judicial elections in Tennessee if this amendment fails. We have a high degree of confidence that Tennessee could, and probably would, elect judges who are committed to the rule of law, producing a record that would satisfy everyone from the business community to social-policy groups.

But JCN parts ways with those few legislators who have said they may withhold their support from the amendment in an effort to secure judicial elections; they are being short-sighted. In fact, those who would withhold support from the amendment are doing exactly what the left-wing Soros-backed coalition of entities who support the Missouri Plan want them to do. Take a look at the blog of Justice at Stake, the leading Soros-funded entity that works on this issue, and note how they have been touting so-called “conservative opposition” to the amendment. Just as Middle East oil sheiks are gleeful when environmental groups oppose U.S. energy exploration, Soros-funded groups are perfectly happy to have contested election supporters unwittingly advance their left-wing agenda.

Because Tennessee is a very red state, left-leaning special interests must use Republicans as tools to accomplish their goals, including the preservation of the Missouri Plan. A few Republican politicians and power brokers would also rather hedge and do what they can to control of the old political apparatus put in place by the Missouri Plan. But that is the same type of short-sighted, power-hungry thinking that has helped create an out-of-control federal government with $16 trillion in debt and counting.

The amendment, nicknamed the Founders’ Plan, is an unquestionably conservative policy proposal. It has been endorsed by numerous conservative organizations (JCN, Eagle Forum, Family Action of Tennessee, Americans for Prosperity, the Beacon Center of Tennessee, etc.) who embrace the principles of judicial selection articulated by the Founders and set forth in the U.S. Constitution. It also has the advantage of also having been endorsed by the leading business organizations (including the Tennessee Chamber, Business Roundtable, and the Nashville Chamber) who have determined that it is a sensible approach, and who clearly believe it is an efficient way of avoiding a judiciary dominated by plaintiffs’ trial lawyers.

Tennessee is now at the center of a national debate over the way state judges should be selected. Most other states are haggling over whether to elect judges or to adopt the Missouri Plan, the method beloved by trial lawyers and the far Left. The modified federal method currently before the Tennessee legislature provides an opportunity to resolve Tennessee’s judicial-selection controversy in a manner that unites a very diverse coalition of individuals and organizations that are often at odds with one another. Governor Haslam, Lieutenant Governor Ramsey, Speaker Harwell, and every other public official in Tennessee should make it clear that they fully support this imminently sensible compromise now and on the ballot in 2014, and end this controversy once and for all.

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

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