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.