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.
Ned:
ReplyDeleteThank you for mentioning my Article in the Flyer. I appreciate your comments, as well.
However, I want to correct one statement you made. I have not offered a defense of merit selection. I agree with you that the Judicial Selection Commission is badly flawed and needs to be replaced. What I do offer a defense of is retention elections. Partisan, contested elections for judges are a mistake—both philosophically and practically—for all the reasons set out in my article.
You also raise the constitutional issue. There, we disagree. You have suggested that the state constitution requires contested elections of the Republican vs. Democrat variety. However the language of the Constitution does not support that conclusion. The language is: “The judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have the power to prescribe such rules as may be necessary to carry out the provisions,” Tennessee Constitution, Art VI, Sec 3. Note especially the second sentence.
The Tennessee Supreme Court has ruled on this issue twice: State ex rel Higgins v Dunn 496 SW 2d 480 (1973) and State ex rel Hooker v Thompson, 1996 WL 570090 (Tennessee 1996).Last time I checked, the pronouncements of a state Supreme Court were definitive with regard to interpretations of the State Constitution.
In addition, the Court of Appeals cited these cases as authoritative on the constitutional issue in the case of Delaney v Thompson, although the Tennessee Supreme Court reversed, holding that the Court of Appeals need not have reached the constitutional issue. 982 SW 2d 857 (TN 1998).
Recently, in the case of Johnson v Bredesen, No 3:07-0373, U.S. District Court for the Middle District of Tennessee, Judge Echols dismissed yet another challenge to the Tennessee Plan, saying: “Nothing in the present objections convinces the Court …that the Magistrate Judge was wrong in his conclusion that the Tennessee Supreme Court has spoken clearly in upholding the constitutionality of the Tennessee Plan,’ even though reasonable jurists might disagree with the Tennessee Supreme Court’s reasoning.”. See also, Hooker v Anderson, 12 Fed. Appx. 323 (6th cir 2001), in which John Jay Hooker’s §1983 challenge to retention elections was dismissed.
I think the issue is settled. Retention elections satisfy the Constitutional requirement. If you want to argue about them as a matter of policy preference, that is one thing, but it is disingenuous to say that they are unconstitutional.