Effecting checks and balances in NY State

I guess affecting Legislators' pocketbooks would be an effective means of checking/balancing by NY's third branch of government. ("Upstate New York Judge Censured in Bid to Get Pay Raise" - NYTimes.com)

Kelsey's controversialness

In a fundraising email this evening, the Tennessee Democratic Party goes after "the very right-wing and controversial politician Brian Kelsey" (that's right, very right-wing) because, among other things he

• supported politicizing the judicial selection process by electing judges to their positions, from the state supreme court down to the local judge. Many say that our current system of selecting judges by way of a judicial selection commission, which chooses the slate of candidates from which governors appoint new judges, is the most professional and least politicized process in the region.

Well, Kelsey is in good company on this point: a majority of Tennesseans agree that leaving the selection of judges to an unaccountable commission of special-interest lawyers was a bad idea.

Judges need to be anchored to SOMEthing

Yikes, former Justice Sandra Day O'Connor is keeping busy. This article ("Should Judicial Elections Be Abolished?" - Above the Law) reports some of her thinking on the election of judges. I can appreciate the arguments against electing judges, but it is interesting to hear how often opponents resort to anecdotal and literary examples in support of their policy preference*:

Justice O’Connor would like to see judicial elections ended, to protect the independence of the third branch of government. “We need to encourage judges and justices, when they speak in public arenas, to talk about these matters, and to keep reminding Americans about the importance of an independent judiciary,” said O’Connor.

She thinks that if Americans were better informed about the judiciary, the need to abolish elections would be self-evident. The states with judicial elections “allow campaign contributions to be made, and there can be vigorous and unfortunate campaigns. All of those states initially had appointed judges, and after Andrew Jackson became president, he had some very populist ideals, and he started persuading some of the states that they should elect judges, not appoint them. First state was Georgia. And they’re still doing that,” she said. “Look at the Caperton case. John Grisham’s novel on appeals might be based on it. It should be a source of real concern for Americans. If we have to resort to litigation, we want to feel issues will be decided fairly and impartially in court by a competent judge who is not subject to influence by campaign contributions and leanings towards one side or another.”

Some might argue that being involved in elections forces judges to be more transparent and to educate the public about what they do, but O’Connor disagrees with that notion. “If you have looked at some of the television ads in states that have judicial elections, I do not think you would be persuaded that it’s educational,” she said. “It’s not a very civilized or educational campaign."

*Incidentally, such a policy preference in Tennessee should be trumped by the plain text of our Constitution, but I digress . . .

1st mtg of Judicial Nominating Commission

Chattanooga Times Free Press | Judicial Nominating Commission to meet for first time: "The first meeting of the state's newly formed Judicial Nominating Commission is set for Sept. 23 in Nashville." From the article:

The process for selecting the state's appellate judges, dubbed the "Tennessee Plan," had come under fire again over the past year. During this year's General Assembly session, legislators had the option of abandoning the plan and reverting to what critics say the state constitution calls for: the popular election of such judges.

Instead, the Legislature voted to keep the plan but reinvent the way in which the nominating committee is selected. The new commission takes away mandated appointments to the commission by various legal and special-interest groups such as the state bar association.

Selection by a legal oligarchy

Selection by a legal oligarchy

JNC commission named

The newly-appointed members of the shiny new Judicial Nominating Commission have been announced. For what it's worth, 15 of the 17 are lawyers.

Here's a list of [the Speaker of the House Kent] Williams appointees:

-David Bautista, an attorney and adjunct professor in East Tennessee State University's Department of Criminal Justice and Criminology.

-Mary Helen Beard, senior attorney with FedEx Corp. in Memphis.
-Ana L. Escobar, a Nashville attorney specializing in criminal defense.

-Russell Johnson of Loudon County, who is district attorney general in the 9th Judicial District and a former Republican state representative.

-Edward L. Martindale Jr., a Jackson attorney.

-William Scott Sims, a Nashville attorney.

-Denise Terry Stapleton, a Morristown attorney.

-C. Barry Ward of Tipton County, a lawyer who practices in Memphis.

Here is a list of [the Lt. Gov. Ron] Ramsey appointees:

-Miles Burdine, president and CEO of the Kingsport Area Chamber of Commerce.

-Christopher Campbell, a Memphis attorney.

-Christopher Clem, a Chattanooga lawyer and former Republican state representative.

-William Jenkins Jr., a Dyersburg attorney and son of former U.S. Rep. Bill Jenkins of Rogersville.

-Theresa Lee, senior vice president and chief legal officer for Eastman Chemical Co. in Kingsport.

-Thomas Lawless, a Nashville lawyer

-Jack Lowery, a Lebanon lawyer.

-William Young of Signal Mountain, general counsel and senior vice president of Risk Management for BlueCross BlueShield of Tennessee in Chattanooga.

See also, AP for the politically correct breakdown.

Help Wanted . . .

If you're reading this post, you're no doubt aware that the Tennessee General Assembly renewed a commission-based system of selecting appellate court judges, and one aspect of the “reform” to the system was to require the appointment of a completely new selection or evaluation commission.

Accordingly, the process is underway to identify candidates for the commission, and I'm encouraging jurisprudentially conservative Tennesseans to place their name in contention. I am a little ambivalent regarding the process, because our group worked hard to replace our commission-based system. That being said, until such a day as the system for selecting judges is changed, I think it is imperative to have judicial evaluation commission members who honor judicial restraint, that is, who honor the proper role of judges in a republic.

The deadline is Friday, July 31, 2009 to have your name included on the list of persons to be considered by Lt. Gov. Ramsey and Speaker Kent Williams. There are a variety of qualifications to be appointed (a summary of them is here), but it is important to note that up to seven of the 17 seats can be filled with non-attorneys.

Please follow this link (to the Tennessee Administrative Office of the Courts website) for more information and for an application form.

http://www.tsc.state.tn.us/geninfo/judicialselection/judicialnominationapp.htm

The fight over judicial selection -- Commercial Appeal

The Commercial Appeal's analysis (here) of the battle in Tennessee over judicial selection:

The internecine fights were most evident on the Republican side, over how judges of the Tennessee Supreme Court are selected.

It broke into open warfare two weeks ago when conservatives mutinied against a compromise drafted by GOP colleagues that would maintain for another two years Tennessee's merit-selection, retention-election system for choosing Supreme Court justices and other appellate judges.

The issue boils down to whether Tennessee's top judges should be elected or appointed. It has huge ramifications for the judicial branch and for all Tennesseans.

. . . .

But it became apparent that compromise on judicial selection was likely. Most Democrats and moderate Republicans basically favored retaining the current system, but neither side had the votes to do everything it wanted.

Pushing back against the Bar

A final WSJ report on this phase of the debate over who will pick Tennessee's appellate judges. Tennessee Bar Fight - WSJ.com From the article:

Tennessee is moving the dial on how it chooses judges, changing parts of the so-called merit selection method that has governed the state for decades. Under a new plan approved by the legislature on Friday, the lawyers who have dominated judicial selection are getting put back in their place.

Wait'll next year . . .

The State Senate voted today (here) to concur with the House's amendments to SB1573 (here), that is, a majority of Senators voted against a governor's override provision as part of the changes to Tennessee's commission-based system of judicial selection.

It was quick and without fanfare, and eight Republican senators joined the Democrats to pass the version of the bill preferred by the Lawyers' Lobby.

Until proponents of commission-based selection of judges change the Constitution to accommodate their preferred system, this issue will not go away; so look for a battle when the Judicial Commissions come up for review again in two years.

And look for the issue to come up in primaries and general elections in 2010. ;)

Voting Aye: (* - Republican; ** - Republican running for governor)
Ramsey**
Barnes
Berke
Burks
Faulk*
Finney
Ford
Gresham*
Harper
Haynes
Henry
Herron
Jackson
Ketron*
Kyle
Marrero
Overbey*
Stewart
Tracy*
Woodson*
Yager*


Voting No:
Beavers*
Bunch*
Burchett*
Crowe*
Johnson*
McNally*
Norris*
Southerland*
Stanley*
Watson*


Absent/Not Voting:
Black*
Tate

From the "Bad Facts Make Bad Law" Dept.

From what I knew about the situation, I was inclined to think that the correct conclusion in the WV refuse-to-recuse case (here) was obvious . . . until I read the facts and until I thought about the proper role of the Supreme Court in establishing precedent on a given issue. Proponents of Tennessee's system of picking judges by unaccountable commissions have been eager to point to WV as Exhibit A of "cash in the courts" or as the norm in states where supreme court justices are elected; that's demagoguery.

Read the Supreme Court's Caperton v. Massey slip opinion for yourself (here), especially Chief Justice Roberts' dissent, and see if you don't agree that "bad facts make bad law."

Making Tennessee sausage

It has been interesting to read some of the reports from Liberal Bloggers' day at the Hill (here and here) And one comment from Ilissa Gold jumped out at me about some of the personalities involved: (Post Politics):

"Rep. Hank Fincher drew applause from the bloggers when he expressed his frustration with always compromising with the Republicans. He analogized it by saying that if they’re determined to drive the bus into a ditch, to let them and stop grabbing the steering wheel. I liked that."

That Fincher sure is a stand-up guy . . .

Hey, who's driving the bus?

Judicial Selection Bill Clears Senate and House | Humphrey on the Hill | knoxnews.com:

The Senate voted 27-5 Thursday to set up a revised system for selecting the state's top judges. The House approved the same bill a few hours later on a 58-38 vote.

In both chambers, debate was long and sometimes testy.

The House added one amendment to the Senate version, meaning the bill must now return to the Senate next week for concurrence.

Rep. Joe McCord, R-Maryville, the House sponsor, said he believes the Senate [will?] go along with the change. If so, SB1573 will go to Gov. Phil Bredesen, who has indicated support for the proposal.

(emphasis mine). Or how about not? McCord and other Republicans would be wise to say "no" to the Lawyer's Lobby on this one.

TBA supports Senate version of JudSel bill

Next week the state senate will consider whether to accept a House version of Judicial Selection legislation that takes away the only real accountability provision of the bill. The Tennessean is reporting that the TBA is supportive of the Senate's version which includes a gubernatorial check on the commission's power to appoint judges (SB1573). According to The Tennessean:

Allan Ramsaur, executive director of the Tennessee Bar Association, said his organization would be satisfied with either version.

The Senate can vote to adopt the House version, or leaders will have to form a conference committee to iron out the difference.

Extraordinary politics as usual

One legislator's name came to mind--"Hank" Fincher, when I read this statement from David Fowler (of Family Action Council of Tennessee):

And the Senate Republicans didn’t believe the House would accept a true election bill which, of course, we’ll never know for sure since they really didn’t have to vote on a bill that only did just that. And you never know because legislators have been known to rail against bills then vote for them if voting against them is not politically smart election-wise. And voting against letting people vote on something as important as their Supreme Court judges could be something an election-year opponent may just love to talk a lot about.

(emphasis mine) Fincher voted AGAINST commission-based selection of judges on Thursday, after voting and speaking in favor of commission-based selection of judges at every turn during this session (here).

I'm amazed that someone as outspoken as Fincher would think he could get away with this. That's a whole new level of disingenuous.




Hat tip, Post Politics

Moving on from the Tennessee Plan

Minutes ago the Tennessee House passed its version of the post-Tennessee Plan system for judicial selection. (HB1448). The Senate's version of the bill is SB1573.

The legislation is certainly an improvement over the modified Missouri Plan or Tennessee Plan in operation for several decades, even though it does not jibe with the constitution's requirement for contested elections.

The only difference between the two bills is that the House rejected the innovation of allowing the governor to reject, for good cause, the recommendations of the Judicial Nominating Commission and to select a judicial candidate who had been vetted but not chosen by the Commission. Legislators need to keep this valuable means of checking the power of the virtually unaccountable commissions.


Here are the provisions at issue:

From SB1573:

§ 17-4-112. (a) (1) When a vacancy occurs in the office of an appellate court after July 1, 2009, by death, resignation or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the judicial nominating commission, or the governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission; or, alternatively, for good cause, the governor may reject both panels and fill the vacancy by appointing another qualified person who was considered by the commission as a possible nominee for the judicial vacancy but whose name was not included on either panel submitted to the governor. (emphasis mine) If the governor rejects both panels, then the governor must provide written notice to the judicial nominating commission stating the reasons for rejection of the panels.
(2) After receiving the commission's panel or panels of nominees, but prior to making an appointment pursuant to subdivision (a)(1), or prior to making an appointment pursuant to § 17-4-113, the governor shall direct the Tennessee bureau of investigation or other appropriate
agencies to perform appropriate financial and criminal background investigations and inquiries of the prospective appointees, and the governor shall review and assess the results thereof.
(b) The term of a judge appointed under this section shall expire on August 31 after the next regular August election occurring more than thirty (30) days after the vacancy occurs.

From HB1448:
§ 17-4-112. (a)(1) When a vacancy occurs in the office of an appellate court after July 1, 2009, by death, resignation or otherwise, the governor shall fill the vacancy by appointing one (1) of the three (3) persons nominated by the judicial nominating commission, or the governor may require the commission to submit one (1) other panel of three (3) additional nominees. Within sixty (60) days following receipt of the additional panel of nominees, the governor shall fill the vacancy by appointing any one (1) of the six (6) nominees certified by the commission.
(2) After receiving the commission's panel or panels of nominees, but prior to making an appointment pursuant to subdivision (a)(1), the governor shall direct the Tennessee bureau of investigation or other appropriate agencies to perform appropriate financial and criminal background investigations and inquiries of the prospective appointees, and the governor shall review and assess the results thereof.
(b) The term of a judge appointed under this section shall expire on August 31 after the next regular August election occurring more than thirty (30) days after the vacancy occurs.

UPDATE: Holding on to the silver lining

Well, the Tennessee Plan (or Modified Missouri Plan) that has prevailed in Tennessee since the 70s is taking a beating at the state capitol today.

One positive (though no more constitutional) aspect of the bill that passed out of the (Republican-controlled) Senate today (SB1573) is that it gives a governor the authority to reject all six nominees submitted to him or her from the Judicial Selection/Nomination Commission and "reach down" to pick a justice from the entire pool of persons who have been vetted by the Commission. It would be sort of like the process used on the Federal level, except that there is no Senate "advice and consent" element. And, as I alluded to above, it is not consistent with our constitution.

Another positive development in the Senate version is that the Judicial Nomination Commission will conduct its deliberations in public, though they will vote anonymously on the nominations to be submitted to the governor.

UPDATE (insert): There are two other positive aspects to this bill that I should mention (though I don't think they're really up for debate at this point). A reader reminded me that one result of a "new" commission being created is that it will automatically have a sunset date of 2011, per T.C.A. 4-29-118 (here). Another improvement on the "Tennessee Plan" is that Speaker of the House and the Lt. Governor will have freedom to appoint whomever they choose (each must pick "at least" five lawyers) to the Nominating Commission.

We need to help Lt. Gov. Ramsey be motivated to fight for these silver linings. It is not likely that either of these provisions will pass in the House's version of the TBA's bill, indeed, the only reason that the House rolled this bill last week was because the TBA's lead lobbyist, Steve Cobb, couldn't stomach it.

Accordingly, the next battle is over whether to keep this provision in the bill during a likely House and Senate Conference Committee. Ramsey will determine the membership of the Conference Committee, and after the Conference Committee's report--whatever legislative proposal emerges from the Committee, will not be subject to amendment or modification. Let Lt. Gov. Ramsey, and your respective Senator (find him or her here), know that you want him to stand strong on this issue.

Judicial Selection in the news and on the calendar . . .

As the propaganda campaigns (from both the Left and the Right) regarding Sotomayor's nomination have geared up, it is hard to argue with a straight face that any system of picking judges is above politics. The question is who gets to be substantively involved in the politics. Is the political process for picking judges transparent? Does the political process for picking judges provide accountability? Not to mention, is the process consistent with a state's organizing document (i.e., Constitution)?

The full State Senate will likely be voting on two judicial selection bills today (SB2114 and SB1573). Tune into a live video stream of the proceedings here.

From what I'm hearing, there's a good chance that the House may adjourn for the week before voting on its version of the extend-the-commissions bill (HB1448).

We may know by lunch time whether the State Senate will side the The People or The Powerful on this issue . . . whether the Senate will be faithful to our state's Constitution or to an unconstitutional power-grab known as the Tennessee Plan.

Is the Tennessee Plan Constitutional?

When listening this morning to Sen. Doug Overbey inveigh against comments from John Jay Hooker today in the Senate Finance, Ways & Means Committee (0:14:45 in the video), I was reminded of his simmering anger after comments by John Jay Hooker at a previous hearing before the Sen. Judiciary Committee (3:05:00 in the video) . . . apparently Overbey isn't a fan of John Jay Hooker, but it's also apparent that you dare not question the constitutionality of something Sen. Overbey thinks is a good idea.

There is a great deal of discussion on our website (www.judicialreformcoalition.org) about whether the TN Plan is consistent with our state constitution, and John Jay Hooker has extensively opined on this subject. But perhaps Hooker's best statement on the subject occurred several weeks ago in the House Judiciary Civil Practice and Procedure Subcommittee. I sincerely encourage you to listen to the entirety of his comments (beginning at 00:25:00 in the video), but I'd say the choicest sound bite of all is related to what our constitution "means" when it requires, "judges shall be elected by the qualified voters of the state." (Tenn. Const., Art. VI, Sec. 3). Mr. Hooker concluded his comments this way:

I asked my father one time what a constitutional provision meant, he said, "Ask your mother." I said, "Papa, have you forgotten, she's not a lawyer?" He said, "That's the point: the constitution was written by non-lawyers, to be read by non-lawyers, to govern non-lawyers."

Read it yourself.

"Conservatives" help Lawyers' Lobby bill advance in State Senate

Interesting debate this a.m. in TN Senate Finance, Ways & Means Committee. (here). They were debating whether to allow the bill preferred by the Lawyer's Lobby (SB1573--preserving unconstitutional, commission-based selection of judges) to advance in the Senate.

Note: great comments by Sen. Watson at 1:04 in the video. Weaselly comments by Sen. Overbey at 1:07. More great comments (though I think he's wrong about election of judges) by Sen. Watson at 1:19.

Republican Senators Jamie Woodson, Diane Black, and Mark Norris gave the Lawyers' Lobby the votes it needed to keep the bill moving in the Senate . . .

Kudos to Senators Randy McNally, Bo Watson and Tim Burchett.

Been there, Dunn that

During Monday's historic vote on SJR127, Rep. Bill Dunn (R-Knoxville) made this prescient comment:

Obviously the courts and how we select them or how we should elect them is an issue before us now. And if we continue to go where the people have no say who sits on the Supreme Court, then we're going to be right back in the posture of instead of the people controlling their Constitution, the courts will.

In a Finch, demagoguery will do (or maybe not)

Rep. Hank Fincher (here) was in fine dismissive and demagogic form in the House Judiciary committee's discussion on HB2018 yesterday. "Horrible," "up for sale," "fervent hope," "spectre," "big money," "scare." He lost anyway.

First, he completely mischaracterized the effect (not to mention the intent) of this bill (he's either ignorant or wholly disingenuous). This bill only would spring into effect if the judicial commissions are not renewed or extended or replaced. That's a big "if."

But he also showed a major disconnect in claiming that Elitist support for commission-based selection of judges (and Elitist indifference to the text of the TN Constitution) was somehow dispositive of the issue. Fincher:

When you got the trial lawyers and the Chamber of Commerce in agreement on an issue, you ought to stop and think for a second if you're disagreeing with them. Because those two groups are diametrically opposed on so many things. . . .

Actually, that scenario may very well reflect that you are disagreeing with "The Powerful." That's one thing that those two groups have in common, and why would they complain when they have the "big money" and insider influence to influence the back-room decisions made by judicial commissions?

Encourage your state senator or representative to do the responsible thing and support HB2018/SB2618 to avert any potential confusion if the General Assembly does not reach an agreement on Judicial Selection before July 1st.

Is Ramsey the real deal?

terryfrank.net » Judicial Selection: The Issue to Separate the Real Deal from the Dealmakers:

It is in this day that Lt. Governor Ron Ramsey could separate himself from the political class. It is in this day that he could show that our legal documents do matter, that the Constitution says what it means.

But instead, he chooses to side with the political Machiavellian advisors whispering the all too familiar message of “where are they going to go?” I heard Ramsey’s gubernatorial advisor say those very words to me almost 10 years ago. I think we can look at 2006 and 2008 and see that they may not have gone anywhere, but they didn’t show up.

These naive insiders haven’t walked the streets in awhile. They rub shoulders with the lobbyists. They are swayed by the flattery of institutional players. They overestimate their own importance in the system.

. . . .

Folks are sick and tired of the sell-out, dealmakers running the show. If you have some wavering, weak-kneed fellow Senators, give them a reason to stand with you. Let this horrible Tennessee Plan expire. Show Tennessee why you should be the Governor, why you should be the choice of the people.

And that’s advice from this Tennessee gal who wants absolutely nothing in return.

From the "I'm glad you asked" Dept.: Tennessee's AG says some retention votes unconstitutional

(Tennessee's attorney general says retention votes unconstitutional | www.tennessean.com | The Tennessean):

Tennessee's attorney general says yes-no retention elections for governor and legislators would be unconstitutional.

In the case of governor, Attorney General Bob Cooper said in his opinion issued Friday that language in the state constitution "clearly contemplates a popular election involving two or more persons."

And he says a court could construe certain provisions of the constitution to distinguish legislative elections from judicial elections so that a yes-no retention election for legislators would be unconstitutional.

Currently, state Supreme Court justices stand for yes-no retention elections when their terms end.

The opinion was requested by Republican Rep. Brian Kelsey of Germantown.

Hat tip Terry Frank.

Senate and House moving in opposite directions on Judicial Selection

("Norris Proposes Constitutional Convention on Judges" | Humphrey on the Hill | knoxnews.com):

Senate Republican Leader Mark Norris won committee approval Wednesday of a plan for selecting top state judges and also proposed that a constitutional convention be held to resolve matter.

The Senate Judiciary Committee, on a 5-3 vote, approved SB2114 after amending the measure to eliminate a provision that would have required state Supreme Court Justice Sharon Lee to face a contested election next year.

. . . .

Left sitting in the committee were other proposals, including one offered by Sen. Doug Overbey, R-Maryville, who had attempted last week to forge a compromise.

Democrats had indicated they preferred Overbey's plan over the Norris version. Beavers, on the other hand, declared she views the Norris bill as unconstitutional, just as she views the current system. But Beavers did indicate an interest in having a constitutional convention on the matter.

Also, from the Nashville Post:

The Senate Judiciary Committee has approved a plan backed by Lt. Gov. Ron Ramsey that would create a new commission to recommend potential jurists to the governor.

The plan went through minor changes from the version that was submitted on Tuesday. Changes include limiting to 10 the number of attorney members of the 17-member Judicial Nominating Commission, making every aspect of the nominating process public, and preventing employers of lobbyists and lobbyists from serving on the nominating commission.

State Sen. Mark Norris (R-Collierville) sponsored the legislation that is now making its way to the Senate Government Operations Committee. In presenting the bill to that committee, Norris said the support he heard in the judiciary committee has him planning to introduce an amendment to call for a constitutional convention specifically addressing how judges are selected in Tennessee.

Bi-partisan problem with Elitism

From Truman Bean ("Elected Judges does not mean approve after a term" : Tennessee News Platoon):

Both Democrats AND Republicans are dancing around this issue.

Elected Judges does not mean approve after a term of service…READ and APPLY the State’s Constitution!

http://www.youtube.com/watch?v=_JFgf5qGCq8

Folks this isn't about Republican vs. Democrat, or Liberal vs. Conservative . . . it is about The Powerful vs. The People.

What's not to like about "unconstitutional"?

Former Supreme Court Justice E. Riley Anderson has fired off a pointed op/ed in favor of preserving commission-based selection of judges, despite the Constitutional requirement that "judges of the Supreme Court shall be elected by the qualified voters of the state." In the piece he asks: ("Tennessee Plan worthy of praise" | www.tennessean.com):

"Why change it? Where is the scandal?"

I hope Anderson is enjoying his retirement . . . I am.


BTW, kudos to The Tennessean for its coverage of the debate over this issue.

Hey Justice Holder! How's this for "ridiculous"?

Tennessee Supreme Court Chief Justice Janice Holder notoriously referred to contested elections of judges as "ridiculous." Well, Justin Owen of the Tennessee Center for Policy Research is proposing another "ridiculous" idea. ("The current plan on judges is ridiculous"):

When it comes to democracy, I think it's time for a change. Average Tennesseans can't be trusted to make sophisticated decisions like picking their representation in the state legislature. To clear things up, I propose a Legislative Merit Selection Act.

Under the Act, the General Assembly bypasses the state constitution and creates a 'Legislative Selection Commission' made up of lobbyists. This unelected and unaccountable committee will nominate three candidates for each House and Senate seat. The governor will then select one person from the slate of candidates to represent each district.

Instead of holding contested elections, voters will only be asked whether their legislators should keep their jobs in a simple 'yes/no' retention election held every few years.

How 'bout it?

TN Senators working hard for you!!

Democrats in the State Senate (which fairly may be said to include Doug Overbey) have certainly been working hard to deprive Tennesseans of their Constitutional authority to choose Supreme and Inferior Court judges. But from within the New Ramsey Plan, there's a nifty provision for people to apply online to become a member of the Judicial Selection Commission (note: they're proposing replacing "selection" with "nomination").

It pains me to picture Senate Republicans hunched over a computer keyboard all weekend laboring over the language of this provision and secretly plotting their surrender over our unconstitutional scheme of commission-based judicial selection. Here's the bill's innovative way of blowing off our Constitution:(Amendment 2 to SB2114)

(d) The administrative office of the courts shall develop and post on its web site a downloadable, information and application form for citizens who wish to be considered for appointment to the judicial nominating commission. The form shall indicate all qualifications required for appointment to the commission.

To be considered for appointment, each applicant must complete, sign and submit the form. Appropriate deadlines for submission of such forms shall be established by the administrative office of the courts in advance of each scheduled vacancy and promptly after the occurrence of any unscheduled vacancy. Each time that deadlines are so established, in addition to notice posted on its web site, the administrative office of the courts shall take
appropriate action to notify the general public and shall provide written notification to the speaker of the senate and the speaker of the house of representatives.
. . . .
§ 17-4-103.

Reports on Ramsey's compromise

Latest reports on the Ramsey compromise ("Significant movement on judicial selection" | NashvillePost.com) Ken Whitehouse:

An amendment, supported by Ramsey, has been filed on SB2114 that would change who can be appointed to a judicial nomination commission and what the governor's options are when he's presented a panel. But it does not allow for direct elections of judges.

The introduction of the amendment prompted Tennessee Bar Association executive director Allan Ramsaur to say that a 'significant move' has been made and Democratic State Sen. Jim Kyle to ask for a day to evaluate. While they wouldn't say anything beyond that, the fact that the ammendment (sic) does not place judges in political campaigns through direct elections is obviously something they are pleased with.

Also, from Tom Humphrey, "More Maneuvering on Judicial Selection" (knoxnews.com):

Senate Speaker Ron Ramsey said he backed off of the elections proposal because it had become a sticking point in negotiations with supporters of the current system.

"Obviously it's not where I wanted to be at the very end to tell you the truth," the Blountville Republican said. "At the same time, I've been down here for 17 years, and know that to pass something it takes 50 votes in the House and 17 in the Senate."
If lawmakers do nothing, the Tennessee plan for judicial selection will expire at the end of next month.

"I don't think just sunsetting the Judicial Selection Commission is a viable option," Ramsey said. "That would cause chaos."

Ramsey's ignoring statutes on the books that allow for the appointment of special judges for "whatever reason." (see here) And I guess we can count on Ramsey to stop at nothing to pass the "Sky Won't Fall" bill (HB2018/SB2168) that would allow the Governor to appoint interim justices until the next bi-ennial election?

No one he knows supports judicial elections

Jeff Woods is pithing into the wind and has figured out the judicial selection issue:(Nashville Scene--Pith in the Wind - "Ramsey Angers Right Wing by Surrendering on Judge Issue"):

Lt. Gov. Ron Ramsey already is taking flak from the right-wing blogosphere here and here for capitulating on the popular election of judges. The Christian Right wants contested elections so they can elect home schoolers, militiamen, survivalists, doomsday cult members, Christian radio station owners and various others of that ilk to the Supreme Court.

Yeah; Drew Johnson: big-time Christian Right Winger.

And 54% of Tennesseans (of both parties): Christian Ring Wingers.

Voters overwhelmingly rejected any notion of keeping the Tennessee Plan, as only 16% preferred that the state legislature reauthorize it. The majority (54%) of those surveyed wanted to return to elections while 19% wanted a new method of selection. In a separate question about potential plans for Tennessee, they further reaffirmed their dissatisfaction of the current method when only 15% selected a nominating commission (the current method) as the best way for the state. On the other hand, nearly four times as many voters (58%) said that a popular vote method would be best for the state. The remaining 17% said a federal model should be implemented in Tennessee.

Way to demagogue, Jeff.

Dunn: "My Bad"

Today's Tennessean has a thoughtful and candid op/ed from former Governor Winfield Dunn on the subject of sunsetting the Tennessee Plan.

("In retrospect, signing Tennessee Plan was a mistake"). Tennessee lawmakers are on the path to make a similar mistake . . . unless we can help them see the light.

Find your state legislator here, and let 'em feel the heat.

Breaking: Ramsey "Relents" (but not to Conservatives)

The AP is reporting that Lt. Gov. Ramsey has indicated he will agree to keep commissions.

See also Terry Frank, "No Profiles in Courage on Capitol Hill."

Also, Kay Brooks, "Duly, Legally and Constitutionally Elected."

Jackson Sun: TN Plan works!!

"Keep Tennessee Plan for state judges" | jacksonsun.com |:

There are plenty of reasons for liking the Tennessee Plan, but the primary one is, it works. Since its creation, it has worked, with rare exception, exactly as it was designed to.

Yes, the "Tennessee Plan" has "worked" inasmuch as its purpose is to give special interest lawyers' groups the power to pick activist judges in secret and insulate them from practically all accountability. The "rare exception" was when a darling of the Left, former Supreme Court Justice Penny White, was denied the effectual life tenure offered by so-called "merit selection."

Hey Jackson Sun Editorial Board: either honor the Constitution or change it.

As long as I agree with the legislative intent

There was an intriguing argument in the comments following this Tennessean article ("Ramsey seeks deal on judicial selections"). I heard this novel argument second-hand over at the Capitol a couple weeks ago. From the comment:

[Judges] are not supposed to interpret the law based on their own policy views nor be swayed by public opinion but instead to faithfully adhere to the legislature’s intent.

The different way of electing judges rather than legislators, retention elections as opposed to partisan elections, is reflective of the different role of these two distinct branches of government. The role of judges is not to reflect their views or public opinion, the very essence of a contested partisan election. Their role is faithfully and impartially interpret the law. Retention elections allow the public to remove a judge that has strayed too far but protects the basic role of the courts. If throughout the judge’s tenure on the bench, the process for retaining that judge is further politicized, do not be surprised if you end up further politicizing the judges, who are elected by this system. Contested partisan elections will destroy the very thing that one wants: a judge who impartially interprets the law without regard to his or her own views or public opinion.

Get it? After drawing you in with the "faithfully adhere to the legislature's intent" language, the commenter brushes off the clear intent of Tennessee lawmakers (and voters, in 1977) who plainly have preferred contested elections. TomMore's preferred "policy views" are that commission-based selection of judges is the best way to get Originalist judges and to hold activist judges to account . . . the election data and common sense and Constitution say otherwise.

Criticising critics of criticism

Chief Justice Holder has gotten some coverage over her remarks that it was "ridiculous" to think that voters choosing judges is better than special-interest-lawyer-controlled commissions choosing judges. And similar campaigning by other sitting judges/justices is attracting criticism (here).

Well, TBA President Buck Lewis ("TBA President on criticism of Tennessee judges") is having none of it:

The architects of our Constitution established three branches of government – the executive, legislative and judicial branch. Each of those branches is given specific responsibilities.

First of all, it's rich to have Buck Lewis--uber proponent of a system that flouts the clear intent of the "the architects of our Constitution," appealing to the intent of said "architects."

But I like how Lewis states in one paragraph (above) that members of the judiciary have been "given specific responsibilities," and he contradicts it in the next sentence by asserting that judges should act no differently than policy makers or legislators. Astonishing. I'm curious to hear Lewis articulate exactly how he thinks members of one branch differ from members in the other branch.

On the bright side, it's good to see someone defending those poor ol' Supreme Court Justices who have thrust themselves into the politics of how judges should be picked.


See also in the Times Free Press.

"Trust me, I'm not a lawyer"

Vandy Law prof Brian Fitzpatrick explains (here) why we can trust non-lawyers to pick judges.

Ramsey proposal moving thru senate

Andy Sher is reporting Bill changing Supreme Court selections approved by senate committee. From the article:

The bill does away with the existing system of Supreme Court justice selection and election in which would-be candidates are screened by the Judicial Selection Commission and the names of three candidates are forwarded to the governor, who appoints one. Voters later vote “yes” or “no” in the next statewide election on whether to retain the justices.

The bill eliminates the 17-member Judicial Selection Commission. Critics, including Sen. Dewayne Bunch, R-Cleveland, have attacked the panel and the entire retention election system, known as the Tennessee Plan, as being unconstitutional, although it has been upheld twice by two specially appointed state Supreme Courts.

Under an amendment offered by Sen. Bunch, governors could appoint anyone they wish to vacancies. Supreme Court justices would have regular elections in 2014 while presumably, a proposed constitutional amendment enshrining the Tennessee Plan would go before voters.

"Special" v. "Controlling" Interest

Ken Marrero, the Blue Collar Muse, has a splendid essay up today ("Special Interests in the Judicial Selection Process") pointing out the foolishness of claiming that commission-based selection of judges (e.g., "The Tennessee Plan") removes special interests from the process of picking judges. Ken writes:

We don’t need Commissions telling us which candidates are the best. The candidates themselves can do that. We don’t need Commissions deciding which judges should be considered for a vote. The candidates can do that, too. We don’t need Commissions dominated by Special Interests to make choices for us. Let’s get rid of The Tennessee Plan. We know our own interests far better than they do and we can be moved by our own Special Interests when we make our own choices - on election day.

Don't beat yourself up, Gov. Bredesen

It appears ("Bredesen regrets letting judicial genie out") that Governor Bredesen is blaming himself for "opening a pandora's box" regarding the decades-old system of picking judges via secret, unaccountable lawyers' commissions. From the article:

With state lawmakers debating what to do with the Judicial Selection Commission, which is currently in wind down mode, Gov. Phil Bredesen said this morning that he regrets criticizing the commission in 2006 for not doing enough to promote diversity.

Bredesen correctly points out that the system does not fulfill its stated objective of diversifying the bench, but for some reason, that failure doesn't keep most diversity-focused politicians from supporting it. So, no harm done, Mr. Governor. As far as I know, nobody who supported commission-based selection of Supreme Court Judges has changed their opinion based on your criticism in 2006.

So, don't beat yourself up. Your kerfuffle isn't what is driving an overwhelming majority of Tennesseans to demand that the judicial commissions go bye-bye.

TFP: "Tennessee Plan takes politics out of politics!"

I missed last week's Times Free Press editorial, and I bet you did as well. Which is a shame since the op/ed declares that commission-based selection of judges manages to remove politics out of the process of selecting judges! From the article ("A threat to courts’ integrity"):

Tennessee’s system of selecting appellate and Supreme Court judges has for years provided an exemplary service to Tennesseans. While voters ultimately elect the judges, they do so under a selection process that preserves judicial independence and integrity by eliminating the traditional corrupting pitfalls of campaign contributions, partisan and ideological agendas, and the power of lobbyists and wealthy special interests.

While it's debatable that "the Tennessee Plan" has served Tennesseans in an "exemplary" way, even the system's staunchest supporters admit that politics are part of the process, while asserting that pushing the politics to unaccountable commissions meeting in secret somehow improves the process.

Regardless, there's no question that the system has played handmaiden to the Lawyers' Lobby in Tennessee. Power to the Lawyers!!

A reader asks: What's the Lawyers' Lobby?

A reader of the blog asks:"What is the 'lawyers lobby' and what do they want?"

Well, dear fan of Judicial Reform Coalition blog, good question. "Lawyers' Lobby" is not a commonly-used phrase, but the best definition is probably found here under "Makeup of the Judicial Selection Commission."

And what do they want? They want to have the greatest control over who can be a judge . . . it should come as no surprise that folks who view courts as super-legislatures are keen to the importance of picking who the judges are.

Likely GOP Primary voter Oatney questions Ramsey

David Oatney comments on Lt. Gov. Ron Ramsey's recent statements about judicial elections in Tennessee: (The World According to Oatney: "Things Are Different, Let's Just Appoint Everybody!"):

Ron Ramsey is a fine human being with so many good ideas for making Tennessee a better place. If he keeps up at his current pace, however, he may not even make it to the August 2008 Republican Primary, let alone actually win it. . . . Now, he says he doesn't want to elect judges in this State, a promise which he has not only broken to the voters, but a stance which can be seen to violate his very oath of office.

One thing that is important for David to know is that Ramsey's purported proposal (I haven't had the privilege of seeing a copy of it yet) would include reviving a previous statute that allows for the governor to make interim appointments to the courts. So, it would be constitutional until at least the next biennial election. At that time, according to those who speculate that the sky will fall if the judicial commissions sunset, the interim judges would simply face retention referenda to keep their seats. But, as reflected in the assertions of one commenter, Ramsey's plan is getting a cool reception from interest groups vehemently opposed to judicial elections: the Lawyer's Lobby.

First, the anonymous commenter claims that the Constitution only addresses the selection of the Supreme Court and also warns of how corrupt it is to elect judges.

Regarding which judges must be elected, one section of the Constitution addresses the "Supreme Court" and the next section addresses "Inferior Courts" . . . and they all are to be "elected." And, as David points out the same term is used for the governor and members of the legislature. Surely you can't "interpret" the word "election" to mean anything other than "contested election" when applied to legislators?

Regarding corruption and judicial elections, I'm eager to hear "anonymous" explain how having an unaccountable, secret commission appoint judges is less susceptible to corruption and abuse than is letting people pick the candidates. Rule of Lawyers. That sounds like a swell idea . . .

Black-robed lobbyists

Tennessee Media Maven Terry Frank is shining the light on judges-campaigning-against-the-evils-of-judges-campaigning.

Terry has been busy. terryfrank.net » ("Judges Aren’t Political, Right? Right, Unless You Were Just Lobbied By One")

Incidentally, here's an example of a "personal" lobbying letter--in favor of commission-based selection of judges, sent from one of Tennessee's sitting Supreme Court Justices to Lt. Gov. Ron Ramsey.

Pie in the sky?

Lt. Gov.Ron Ramsey has disclosed details about his proposal on Judicial Selection--in light of the impending battle over extending commission-based selection of judges. Read about it here.

Based on the reaction from the Lawyers Lobby and Business Lobbyists (as referenced in the article) this seems like a pie-in-the-sky proposal, unless there's something Ramsey's not telling us . . .

Closed-door, partisan control of selecting judges

Yesterday's Tennessean covered the debate on judicial selection and included an assertion about the fairness of the existing system. From the article:

Democratic Rep. Henry Fincher, a Cookeville attorney, argued the existing system has promoted the merit-based selection of judges. "To me, we have a system that appoints fair, impartial judges of both parties," he said.

Well, that may be true "to him," but it's not supported by the facts, according to a recent study completed by Brian Fitzgerald of the Vanderbilt University Law School.

Fitzpatrick discovered:

• Between 1995 and 2008, the commission nominated “twice as many appellate judges more affiliated with the Democratic Party (67%) than with the Republican Party.”
• The sharp political tilt in nominations is not matched by Tennessee’s voters. “Although 67% of the Tennessee Plan appellate nominees between 1995 and 2008 were more affiliated with the Democratic Party, during the same time period Democratic candidates for the state House received only 51% of votes and Democratic candidates for Tennessee’s federal House delegation received only 49% of votes.
• Regardless of whether the governor was a Democrat or Republican, the majority of nominees the commission sent were more affiliated with the Democratic Party.

See Fitzpatrick's study here.

Tripping with Chicken Little, Esq.

Via Post Politics here's a report from Tricities.com about TBA President Buck Lewis most recent stop on the Chicken Little, Esq. Talk Circuit. From the article:

The Tennessee Plan, in place since 1994, is slated to sunset on June 30, and Tennessee officials believe the state will have no legal mechanism for filling appellate court vacancies if the legislature does not act before then.

(emphasis added). Well, at least that's what "Tennessee Officials" and the TBA want legislators to think.

One statute glossed over in the Attorney General's recent "Sky will fall" Opinion is at Tenn. Code Ann. § 17-2-109, under "Special Judges: Congestion or delay in litigation; appointment of former judges":

(a)(1) Whenever litigation in any chancery, circuit, criminal, general sessions, juvenile, probate or appellate court of this state shall become congested or delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court shall assign a retired or regular chancellor or judge to assist in the removal of such congestion or delay; provided, that such assignment shall not materially interfere with the performance of the assigned chancellor's or judge's official duties. In such situation both chancellors or judges may hear, try and dispose of litigation in such court at the same time, both signing their respective minutes.

(2) Whenever litigation in any chancery or circuit court of this state shall become congested, or whenever litigation in any chancery or circuit court has required the recusal of a chancellor or judge, or whenever delay in the disposition of litigation becomes imminent for any reason, the chief justice of the supreme court may assign a former chancellor or judge to assist in the removal of such congestion or delay.

(emphasis added) This statutory section, as well as some other aspects of "the Tennessee Plan," reflect an intention by the legislature that the judiciary not be paralyzed if elements of "the Tennessee Plan" stopped functioning.

The sky will not fall if judicial commissions are allowed to sunset.

Breaking: Judges Prefer Life Tenure for Judges

Jackson Baker reports on a campaign, er, public appearance of Tennessee Supreme Court Chief Justice Janice Holder on Tuesday. Memphis Flyer--"Chief Justice Defends Tennessee Plan, calls Direct-Elections for State Judiciary 'Ridiculous'”).

Baker points out that Holder "dispensed with judicial caution" in her statements. From the article,

Addressing the downtown Kiwanis Club at The Peabody, Justice Holder began her luncheon remarks with a tongue-in-cheek announcement. “I’m gong to talk about basketball,” she said, presenting a facetious proposal to elect officials taking part in NCAA championship tournaments, allowing them to raise money, use attack ads against election opponents, and “show bits and pieces of video of some of these games where there were bad calls.”

After asking rhetorically, “Don’t you think that’s a more democratic way to go about it?” she answered her own question this way: “It is ridiculous, isn’t it? You wouldn’t want your officials to be elected.” Then came her clincher: “Judges are like those officials. You rel[]y on them to call the game fairly.”

One problem with this clever analogy is that basketball referees can't get away with writing the rules as they go, and referees are truly accountable for their performance.

But Holder really pulled out the stops with this fallacious Appeal to Popularity (among lawyers):

The irony is that what we have is the envy of other states, but we are very much in danger of losing it

Well, it's a safe bet that every judge in America would rather not have to ever face criticism for their conduct or ever face an opponent in judicial elections. And “the Tennessee Plan” in particular is certainly the "envy" of every activist judge in the country.

A national survey of state judicial selection systems reflects that “the Tennessee Plan” is without parallel in being stacked in favor of the Lawyers Lobby, and no other state with Constitutionally-mandated election of judges changed to "merit selection" without changing their State’s constitution.

Actually, I think it is ridiculous to see referees joining the home team in a full-court press.

Update:
Kleinheider and Kleinheider II
Ramsey via Jeff Woods

Yes, the sky IS falling!

Adam Kleinheider of Post Politics plays Henny Penny (here) to the Lawyer Lobby's (which includes the AG) Chicken Licken on the issue of what will happen if commission-based selection of judges is allowed to sunset this Summer.http://judicialreformcoalition.blogspot.com/2009/04/tripping-with-chicken-little-esq.html

Kleinheider is Henny Penny, and others in the media will likely play the part Foxy Loxy.

It's the commissions, not just the lawyers

The Knoxville News Sentinel has been doing a lot of reporting on judicial selection lately.

One recent article--("The politics behind picking Tennessee judges") describes the political slant of commission-based selection of judges (see also "A Report on the Political Balance of the Tennessee Plan").

The story also quotes Lt. Gov. Ron Ramsey about how he intends to change the current process:

Ramsey hopes to amend the process before it 'sunsets' on July 1. 'I want to take the strings off,' which would allow the speakers to appoint members with less influence from attorneys' groups, he said.

Ramsey's right to criticize the stranglehold of the Lawyers' Lobby on selection of appellate judges in Tennessee, but replacing one commission of unelected, unaccountable people with another is not likely to remedy the problem of judicial activism and will definitely not remedy the fact that "The Tennessee Plan" is repugnant to our Constitution.

The worst kind of politics

The political bias of Tennessee's commission-based selection of judges is documented in a new study ("A Report on the Political Balance of the Tennessee Plan") by Brian Fitzpatrick of Vanderbilt Law School.

The paper demonstrates that so-called "merit-selection" doesn't remove politics from the process of judicial selection, it simply moves the politics behind the scenes and beyond accountability.



See also, Dan Pero.

Carrying your own water . . .

Jeff Woods of The Nashville Scene is calling out a state legislator for carrying a bill that would "help" his industry of home inspection Nashville Scene, "Pith in the Wind - Conflict of Interest? What's That?"):

Rep. Phillip Johnson, R-Pegram, is looking out for No. 1 in Nashville. He's a home inspector, and this session he's pushing two bills to help that business.

Though I can't find that rule anywhere (see House Rules here), it's not a bad idea.

Nevertheless, I guess it's safe to conclude Jeff Woods and Gary Moore would agree that lawyers in the House and Senate (Kent Coleman, Doug Overbey, Henry Fincher) have no business carrying legislation on behalf of the Tennessee Lawyers' Lobby?




See also: PostPolitics

"Handling" Ramsey's proposal for judicial selection

Here are the latest reports on Lt. Gov. Ramsey's likely proposal for judicial selection. (Tom Humphrey--"Bredesen Opposes Ramsey's Latest Judicial Selection Plan") and ("Vines: Ron Ramsey, Tennessee governor hopeful, offers changes")

It's difficult to comment on a proposal that you haven't seen, but it's interesting how these reports characterize Ramsey's (likely) proposal as being more than a temporary or stop-gap measure to transition the state from commission-based selection of judges to our long-time system of electing judges; they've also seemed to emphasize that Ramsey--if elected governor, would get the power to appoint judges. Reporting the plan this way makes sense if you're (a) attempting to report that the plan is incomplete in addressing every possible scenario that could ever happen, and (b) attempting to characterize Ramsey's proposal as self-serving. I'm concerned that Ramsey lacks the nerve to sunset the Lawyers Lobby's method of selecting judges, but I still believe that his proposals deserve a fair shake from the Media.

Incidentally, one point from the article that needs clarifying, in my opinion, is that the law in place for 100 years in Tennessee allowed the governor to make interim appointments until the next biennial election in August, rather than to serve the remainder of an eight-year term, as the article seems to indicate. At worst, interim appointees would face a retention referendum, and at best they would face contested elections as are provided by the laws which were never repealed and are still on the books.

Tennessee Plan's "diversity" dysfunction

The House Judiciary Civil Practice and Procedure subcommittee, chaired by Rep. Brian Kelsey (R-Germantown) held a hearing yesterday, and one of the subjects was Judicial Selection. Here is video of the hearing. While I think that racial or gender "diversity" is much less important than a commitment to Rule of Law on an appellate court, it is worth considering whether Liberals' claim that commission-based selection (aka, "merit selection") of judges is necessary to serve any purported end of promoting diversity on the bench.

Rep. G.A. Hardaway (D-Memphis) speaking in support of his JudSel-related bill (HB0026) that would, in his mind, help to improve racial and gender diversity on Tennessee's appellate courts. Following Hardaway's remarks, Rep. Kent Coleman (D-Murfreesboro) patronizingly pointed out that the fact that there are three women on Tennessee's Supreme Court is "a sign of a system that has worked well" regarding diversity. Well, some quick Blackberry research turned up the fact that out of 20 state supreme courts with female Chief Justices, 9 of them were seated by commission-based selection (aka, "merit selection"), and 7 of them were seated via contested elections. Hardly evidence that we need commission-based selection to achieve gender diversity on our courts.

And regarding racial diversity, Coleman has an even weaker argument. There are no racial minorities on Tennessee's Supreme Court, and there are only two African-American judges (out of 24) on Tennessee's Intermediate Appellate Courts (here and here), and one of these African-American judges has only been on the bench since December of last year.

It needs to be noted that research about whether "merit selection" increases diversity on the bench is inconclusive (see here, here, here and here) and in Tennessee there is as much or more diversity in our trial courts, which are selected in contested elections, as there is on our appellate courts, which are selected by commissions.

Proponents of so-called "merit selection" claim a variety of advantages of their preferred method for picking judges. We know that "the Tennessee Plan" doesn't take (Lawyers') politics out of judicial selection. It also fails to deliver on increased racial "diversity."

UnFinching support of status quo . . .

In a report in The Tennessean last week we learned that Lt. Gov. Ron Ramsey is not comfortable with elections (he should take that up with the generations of Tennesseans who placed and maintained that provision in the Constitution), and wants the House and Senate Speakers (aka, himself) to have discretion to appoint whomever they want to the judicial commissions. But he also says that anything less than judicial elections needs to be approved by the voters. Mark my words, Democrats will NEVER agree to letting the voters settle the question (again--as they did in 1978).

But I loved Democratic Lawyer and Cookeville Rep. Henry Fincher's attempted criticism of Ramsey's proposal:

He's presenting the people of Tennessee with two poor options: Either allow him unfettered, unilateral control over the state's judiciary, or bring in expensive elections where big corporations and insurance companies can buy the Supreme Court.

Under the current system, which Fincher supports, the Lawyers' Lobby has "unfettered, unilateral control over the state's judiciary." And "the big corporations and insurance companies" are--like Fincher, squarely behind commission-based selection of judges and indifferent to what's in the Constitution.

Another Democratic lawyer, Democratic House Judiciary Chairman Kent Coleman, from Murfreesboro said,

The process that currently exists does a good job in taking as much politics out of the process as possible . . . I think that's a better process than giving the speaker full discretion.

The only politics that the current system takes out of selecting judges is the kind of politics that takes place in public and that gives voters a voice in the process.

Paul Summers on how to pick judges

It was good to hear from my former boss, Paul G. Summers, in a Tennessean op/ed a couple weeks ago. In his essay, Summers argued forcefully in favor of keeping the current way that Tennessee picks its judges . . . by commission, as opposed to by election. But as a former Attorney General and former Appellate Court judge, much less a “Fellow” of the Tennessee Bar Association, General Summers is hardly representative of the average Tennessean on the issue of how we should pick judges. In fact, based on the polling I’ve seen, I know his view is not representative.

According to Summers, judges on the intermediate appellate and supreme courts should not be elected, as required by our state constitution, because, “[f]ew voters know who they are; fewer still know what they do.” No, Summers explains, appellate and supreme court judges are like referees, or monkish academics who serve only the law and the facts . . . the problem is that too many appellate judges in our state do not share—or at least do not demonstrate an appreciation for, that perspective. No, they view themselves as those who tell us “what the law is,” and as those who help constitutions to evolve/change to suit modern tastes or preferences.

I can assure you that when the General Assembly chooses to sunset this system of appointment and retention of judges thereby returning Tennessee to contested election of judges, voters will have plenty of opportunity to get to know the character of judges, and will have all the information necessary to assess whether a judicial candidate believes judges should interpret the laws as written or whether judges should allow factors such as personal views to influence their judgments. The only difference will be that with a "level playing field" of contested elections, someone other than the Trial Lawyers Lobby will have input into what kind of judges Tennesseans want.

In a Wall Street Journal report last year on Wisconsin’s judicial elections, John Fund highlighted the importance of allowing voters to have a say on the issue of judges by reference to a 2002 U.S. Supreme Court decision (Republican Party of Minnesota v. White). Fund wrote,

[the Supreme Court declared] that completely separating the judiciary from the notion of "representative government" ignores the fact that state-court judges possess the power to "make" common law as well as to shape their state constitutions. Thus it is entirely appropriate for voters to have a say in whether that "immense power," as the Supreme Court called it, will be used with restraint or abandon.

General Summers may be comfortable with a five-person supreme court (and the 24 members of the intermediate appellate courts) being selected behind closed doors by an unelected, unaccountable commission of lawyers, but I'm not.

About John Ryder's response . . .

I appreciate John Ryder's thoughtful response to my critique of his recent op/ed. You can read it here.
John, I hope you'll forgive me for concluding from your op/ed that you're "down" with "merit selection"--at least "merit selection" that results in appointees that represent your particular views. But your reply raises a couple issues.

First, just because a Supreme Court has ruled a certain way doesn't make it so. The Dred Scott decision of the U.S. Supreme Court is the classic, ConLaw 101 example. I think Tennesseans are able to understand what the Tennessee Constitution means by "elected," and it takes a bunch of lawyers to find a way around that meaning.

But there's an important part to that second sentence in Art. VI, Sec. 3 that John neglected to include: "The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article" (emphasis added) . . . the Constitution gave the Legislature authority to prescribe rules related to jurisdiction, how to make sure that judges were representative of the three grand divisions, etc. not whether a supreme court justice was entitled to never have to face an opponent in an "election."

Likewise, the Constitution doesn't contemplate that "election" of legislators and the governor could later be interpreted to include an uncontested referendum after appointment by a commission. But you never know what might happen if we gave the legislature free rein to come up with whatever definition of "election" suited them . . .

Tell it to the Constitution . . .

Speaking about the subject of extending the life of commission-based selection of judges (as opposed to return to election of judges as set forth in the State Constitution) ("Judicial selection proposal debated," The Tennessean):

"I know that election is probably not the best way to go," [Tennessee Lt. Gov. Ron] Ramsey said in a speech to the Tennessee Business Roundtable earlier this week.

Down with "merit selection"

My friend John Ryder has offered a spirited defense of so-called "merit selection" of judges in the Memphis Flyer--an online journal.

There's some interesting stuff in the op/ed, and I encourage you to read it. But I have to say that I and many others have reached a different conclusion than John about whether election of judges in Tennessee is, "wrong on both philosophical and practical grounds."

As far as a purported philosophical flaw in the election of judges for the supreme court and intermediate appellate courts, John argues as follows:

Judicial elections came into being in the mid-19th century as one of the excesses of Jacksonian democracy. Andrew Jackson had disdain for the judicial process, as evidence[d] by his response to the Supreme Court's decision in Worcester v. Georgia: "Justice Marshall has made his decision; now let him enforce it." We should not rely on a methodology which is reflective of Jacksonian contempt for the rule of law.

While I agree with John's characterization of that infamous quote from Jackson, there's no question that Jackson (or supporters of judicial elections) went to the trouble of changing the Constitution to institute his/their preferred method of selecting judges, which plainly reflects a respect for "rule of law" . . . and which plainly contrasts with how Tennessee advocates of "merit selection" implemented their preferred methodology.

Regarding the "practical[ities]" of the issue, John laments, "that a large section of the judiciary has overstepped its bounds and is, in fact, making law," and he cherry-picks one seeming example from West Virginia of campaign finances influencing a court's opinion. I agree with John that the former phenomenon and the latter incident are very disturbing, but John seems to overlook the reality that a given method of judicial selection does not give birth nor give license to the philosophy that judges should be "making law" or acting acting unethically. Indeed, over the past two decades courts in states where judges are elected have remarkably shifted away from judicial activism and toward judicial restraint. And it would be a lot easier to beat what appears to be a rogue WVA judge in a contested election than in an uncontested retention referendum like we have under the "Tennessee Plan."

At the present (and according to our Constitution), the only feasible means of arresting the continued spread of judicial activism or of judicial unaccountability, is through the election of judges. Though abandoning the ship of defending "merit selection" is a big step for some, until our Constitution is changed, we're all on safer legal and practical ground by supporting a return to judicial elections.

Come on in, John, the water's fine.

Judges campaigning against judges campaigning

Irony abounds in this story from yesterday's edition of the Nashville Business Journal where we learn of public pronouncements by one of our newest Supreme Court Justices, Bill Koch. This is consistent with reports of the possibly unethical (certainly not "beyond reproach") recent political advocacy of Tennessee's Supreme Court Justices and intermediate appellate judges on the issue of how they obtain and retain their lucrative, secure and powerful jobs.

Koch (plus other judges and justices) are making the rounds and staking out their political and legal view that the current system is (a) preferred policy and (b) inconsistent with our constitution's requirement of contested elections.

Justice William Koch told the Tennessee Business Roundtable that while the system, also known as “The Tennessee Plan,” is imperfect and may need some tinkering, it is a better solution than statewide elections for judges — an idea some are promoting.

Incidentally, those of us who "are promoting . . . statewide elections for judges" didn't come up with this idea out of nowhere . . . we're merely saying that the text of the Constitution matters. The article's writer continues:

The current merit selection process, by which a selection panel sends a list of three candidates to the governor and he selects one, expires June 30. Lawmakers must reapprove it or come up with a different solution.

Actually, this isn't correct. It's the commissions that will expire, and lawmakers do not have to "come up with a different solution" for us to end the system of unelected and unaccountable commissions selecting our judges for us. And the term "merit selection" ought to be in quotation marks.

The writer continues:

Koch told the business leaders he is concerned about the effect that campaign money would have on judges’ impartiality, were the state to require judges to run for election.

When someone preaches to you about "removing the politics from the process" you can bet it is your "politics" they are wanting to exclude.

I hate to say it, but all this lofty hand-wringing is annoying, especially coming from people with such an obvious personal interest in the outcome. The only person who can control a judge's "impartiality" is that judge. And now that we know Koch & Co's partialities on the Tennessee Constitution and judicial selection, what about other issues?

BigBiz and trial lawyers picking judges? Say it ain't so!

A fairly accurate article from print publication the Tennessee Journal is worth reading to get a sense of what is currently happening with efforts to extend the life of commission-based selection of judges in Tennessee. I say "fairly accurate" because it insinuates that resistance from Gov. Phil Bredesen was the reason that the judicial commissions were not renewed in 2008 and because (newsflash) the article really only presents advocacy from one side of the issue.

But the most interesting thing about the article's front and center emphasis on the dire consequences of returning to contested judicial elections (as set forth in the Constitution):

While some lawmakers most of them Republicans — would welcome a return to selection by the voters, the legal community sees this outcome as a calamity of the first order. Judges would have to raise money for campaigns, and in the main the funds would come from trial lawyers, business interests, and other parties affected by the rulings the judges make.

Did you catch that? Are we to believe that "the legal community" (aka "Elitists in the Legal Community") is/are concerned about a system controlled by "trial lawyers, business interests, and other parties affected by the rulings"? They already control the process. If we returned to the system required by the Constitution, at least people other than the trial lawyers and business interests would have a voice. (Incidentally, don't expect "business interests" clearly to share voters' views on what qualifies someone to be on the court).

By the way that "other parties" is EVERY TENNESSEAN. Judges interpret and apply laws that are on the books. And regrettably, judges also (with the encouragement of the Left) MAKE law that isn't on the books. The decisions of our courts affect EVERY TENNESSEAN, and Tennesseans should not be shut out of the process unless they agree to that process of picking judges. They never have.

Legislators, on the issue of selecting judges: either change the Constitution, or follow it. It's pretty simple.

Judges making law . . .

It's fascinating to read reports about the recent oral argument in California's Supreme Court on challenges to "Prop 8"--Californians' recent vote to explicitly maintain the traditional understanding of marriage in the state's constitution.

This situation epitomizes the problem with activist courts and activist judges . . . as detailed at Wikipedia (History of marriage in California) :

In 1977, the California Legislature amended [CA law] to read that marriage is 'a personal relation arising out of a civil contract between a man and a woman'.[2] In 2000, voters passed ballot initiative Proposition 22 with 61% of the vote, which added a section to the California Family Code to formally define marriage in California as a union between a man and a woman.

. . . .

On May 15, 2008 the California Supreme Court, by a vote of 4–3 In re Marriage Cases, ruled that the statute enacted by Proposition 22 and other statutes that limit marriage to a relationship between a man and a woman violated the equal protection clause of the California Constitution. It also held that individuals of the same sex have the right to marry under the California Constitution.[17]

. . . .

On November 4, 2008 Proposition 8, an amendment to the California State Constitution [reinstating the traditional definition of marriage] passed 52.3% to 47.7%.[21][22] . . . Numerous lawsuits were filed with the California Supreme Court by same-sex couples and government entities, challenging the proposition's validity and effect on previously administered same-sex marriages. The court is expected to rule on the suits sometime in 2009.[24]

After reading various reactions to recent arguments in the California Supreme Court ("The Daily Dish | By Andrew Sullivan (March 05, 2009) - Prop 8 Oral Argument Reax") and it occurs to me (a) how unwise it is to attempt to guess how judges will rule based on their questions at oral argument, and (b) how much folks are underestimating this particular Court's shameless capacity to legislate from the bench.




Note: how judges are selected in California.

Study concludes bias in evaluating judicial nominees

Supporters of commission-based judicial selection--like Tennessee's modified Missouri Plan, claim that panels of experts can better assess the qualifications and "merit" of candidates for judicial seats.

Well, the National Law Journal is reporting that a soon to be released study confirms "merit" is in the eye/bias of the beholder.

Gee, who's picking the judges?

Whether or not you like Sarah Palin . . . regardless of your view on abortion . . . a commission-based system of picking judges--like we have in Tennessee, removes all accountability concerning who is seated on our courts. As the Washington Times reports ("State law gives Palin no choice but pro-choice"):

Alaska Gov. Sarah Palin had to make a tough choice in filling a vacant slot on her state's Supreme Court: Appoint a woman who once served on the board of Planned Parenthood, or risk giving an environmentalist lawyer, also pro-choice on abortion, the chance to become an activist judge.

Mrs. Palin, a pro-lifer who ran as the Republican vice presidential candidate last fall, rankled social conservatives by choosing Anchorage Superior Court Judge Morgan Christen, the woman with Planned Parenthood ties, over Eric Smith.

. . . .

[A pro-traditional-values critic of Palin] admitted, however, that Mrs. Palin was 'backed into a corner' by the state's system for selecting judges, known as the 'Missouri Plan.' Alaska's constitution requires an independent panel to vet and then submit choices to the governor when positions on the court open up. The only names the panel submitted for consideration were Judge Christen and Mr. Smith - neither an obvious conservative choice.

Proverbial wolves guarding the courthouse . . .

I would bet you haven't heard about the Hannan v. Alltel Publishing Co. case brought down from the mountain by the Tennessee Supreme Court on All Hallows Eve last year. That's certainly understandable, though it's regrettable, because it is a landmark state court ruling, and it will affect your life.

In sum, the court's radical departure from Tennessee and Federal precedent in Hannan and in Martin v. Norfolk Southern Railway Company will make it more difficult--much more difficult, to avoid the time and expense of unnecessary trials--i.e., to have frivolous lawsuits dismissed.

If you are interested in a full legal analysis of the case, I'd recommend this insightful article from the Tennessee Bar Journal, but a quick list of Hannan's consequences are that (a) lawyers will file more expansive (onerous) discovery requests, (b) lawyers will litigate more frequent (and arguably more necessary) motions to compel party opponents to hand over information, (c) lawsuits will be dragged out longer, and (d) lawyers will file a higher number of frivolous lawsuits. Wow.

To put it mildly, this errant ruling is far from a high point in the history of Tennessee jurisprudence. But what should we expect? It doesn't take a brain surgeon to figure out that we'll have decisions like this as long as special lawyer's groups control the process of selecting Supreme Court judges.



Let us know what you think . . .

When negotiating with hostage-takers . . .

I never saw Mel Gibson's Ransom when it was in theaters, but the movie came to mind as I contemplated the struggle over judicial selection in the state Capitol.

State lawmakers who purport to oppose having an unconstitutional system for selecting judges are worrying about what may happen if they sunset the "Tennessee Plan" without providing for a seamless transition or a soft landing or (insert preferred, hackneyed metaphor here). To be clear, I like most of these legislators, and I don't want to get them cross with me, but it appears that they are looking for a compromise for fear of aggravating the Lawyers Lobby.

If you're like me, you bristle at the thought of being forced to negotiate with a hostage-taker, you know, like Mel Gibson's character in Ransom. And in the debate over whether to renew the lawyer-controlled "Tennessee Plan," too many legislators are falling over themselves to strike a deal with those who've taken hostage our system of picking judges. One legislator recently was quoted as saying:

"“The Constitution of Tennessee means what it says,” . . . “Article VI, Sec. 3, states, ‘(t)he Judges of the Supreme Court shall be elected by the qualified voters of the State.’ So it is also with the election of judges of the ‘inferior’ courts. If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”

. . . until then, the General Assembly must agree upon the means by “which we shall transition from the plan we have to the plan we must have” to assure that the administration of justice is done properly."

This is some legislators' rationale for reaching a compromise with the Lawyers Lobby . . . a compromise that is sure to preserve commission-based selection of judges.

The Lawyers Lobby is warning of falling skies and chaos if the "Tennessee Plan" is not renewed, but I'm inclined to view these hostage-takers like the guys who mistakenly nabbed Mel Gibson's son in Ransom (see above). And, to be honest, I'm not even sure there's a bona fide dilemma here.

The sky will not fall if the "Tennessee Plan" is sunset. Yes, the Lawyers Lobby will don sackcloth and ashes. And you can bet your buttons there will be litigation (we're stirring up a hornet's nest full of lawyers, after all). But there's an entire legislative session (and more than a year) between now and the next bi-ennial election for judges. And there are five sessions between now and the next election for full judicial terms. That will be plenty of time--for legislators sufficiently motivated, to come up with any necessary "transition" to a Constitutional system. Heck, they could repeal the entire "Tennessee Plan" if they wanted to.

Maybe lawmakers should rent Ransom. We don't need to let these guys bully us.