Unnaturally Political

Adding a Layer of Accountability to Judicial Appointments in Tennessee

“You want two things in judges,” Justin Owen, president of the Beacon Center of Tennessee, a told me in a recent interview. “You want them to be independent and you want them to be accountable.”

This is the goal of supporters of the effort to pass Amendment 2 to the Tennessee constitution. Amendment 2 enjoys bipartisan support with current Republican Gov. Bill Haslam and former Democratic Gov. Phil Bredesen endorsing it.

If voters pass Amendment 2 this November, the Tennessee general assembly would have the authority to confirm a governor’s nomination of any supreme court and appellate-court judges.

Currently, the governor selects state judicial replacements from a group of nominees presented to him by a selection committee. Justices go on to serve an eight-year term, after which they may seek another term in a general voter-retention election.

Under this system, only one supreme-court justice, since 1971, has been removed from the bench.

In August, all three justices on the ballot were retained, each garnering more than 55 percent of the vote.

“This adds an important new check and balance on the current system,” John Crisp, communications director for the Yes on 2 Committee, told me.

Amendment 2 challenges the legitimacy of the retention election process, something several lawsuits — including one brought by the Beacon Center — failed to do, Owen says.

The Tennessee constitution simply says, “The judges of the supreme court shall be elected by the qualified voters of the state.” Owen and others have argued the current process of retention elections does not satisfy this requirement.

“The question then became: Do you continue the court battles to fight the system, or do you work to amend the constitution?” Owen explains.

Support for Amendment 2 is far from unanimous.

Former Democratic nominee for governor, John Jay Hooker, agrees the current method for judicial selection is unconstitutional, but wants the selection process and not the constitution changed.

“My great grandfather was part of the constitution convention in 1871,” Hooker told me. “They debated for three days about whether judges should be appointed like the federal system or elected. Their decision is very clear.”

“The state constitution says that judges shall be elected by the qualified voters,” Hooker told Tennessee Watchdog reporter Chris Butler. “It’s pretty hard to misunderstand that language.”

This Tennessee Plan adopted by the legislature in 1971 allowing the governor to appoint judges is “preposterous” and has always been illegal, Hooker says.

“It’s like someone steals a car, gives it to you, you know it’s stolen, but you drive it any way,” he says.

Hooker, however, thinks the language of Amendment 2 makes it difficult for voters to understand what language in the state constitution they are being asked to change.

“Shall Article VI, Section 3 of the Constitution of Tennessee,” the ballot question begins, “be amended by deleting the first and second sentences…. ”

“They are being asked if they want to change Article Six, Section 3, but aren’t even being given what the language is,” he says.

But, Crisp argues that, “it would be like reading a book on the ballot” if the constitutional language relating to all the proposed amendments were given to voters at the polls.

“With four constitutional amendments on the ballot, I think the legislature decided to present all of the amendments as directly as they could, with the replacement language clearly spelled out for voters to review,” he countered. 

Hooker argues Tennessee should adopt the direct election process currently utilized by 22 other states across the country. 

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