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.

Cool quote

Some legislators are fretting over this or that naysayer's opinion about sunsetting our current system for judicial selection (the "Tennessee Plan"). I liked this quote that I came across today:

I am looking for a lot of men who have an infinite capacity to not know what can't be done.--Henry Ford

H/T: 48days.com

What rule of law is . . .

In recent months a couple of references to "rule of law" have caught my attention . . . these constructions of the phrase may sound sort of right, but they miss the mark. In particular, the Tennessee Bar Association (TBA) has been throwing the term around quite a bit.

Here's one example, which I read today in the Tennessee Bar Journal, in an article written by TBA President, Buck Lewis in listing some of the "core values that should bind all lawyers together":

A belief in the rule of law--the notion that no one is above the law and that the law should be applied the same to the least of these as it is to those with power and influence.

Though Lewis' populist-sounding construction of the phrase is certainly a worthwhile value, (and who can argue with a Biblical allusion!?!) it demonstrates a superficial understanding of the term and of the historical significance of a departure from rule by kings or any other authoritarian rule.

Indeed, "rule of law" is actually best understood by considering its opposite condition, which is "rule of man." In sum, "rule of law" means that we as citizens are subject to laws, not individual persons; thus it doesn't matter who is doing the judging (or acting as the executive).

It doesn't surprise me that Lewis has a skewed understanding of "rule of law," given his and the TBA's fierce advocacy for the "Tennessee Plan" . . . a judicial selection system that (a) violates Tennessee's Constitutional requirement that supreme court justices (and "inferior" courts such as the intermediate appellate courts) be elected; (b) practically guarantees that "living constitution" devotees will end up on the court and (c) insulates activist judges from accountability.

Tennessee's current system of judicial selection practically insures life tenure on the courts. And as long as "men" are unaccountable for their actions as judges, we can expect to live under rule of men rather than rule of law.