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.