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.