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.

Last, but not least . . .

This, from all the way below the fold in yesterday's Commercial Appeal reporting on the upcoming session of the TN General Assembly ( "Money, economy cloud Tennessee legislature's session" -- Memphis Commercial Appeal):

"Judicial selection: The 'Tennessee Plan' for the selection of Tennessee Supreme Court justices expires July 1. Some conservative groups want to return to straight elections of the five high-court judges. At the least, Republican leaders want to change the appointment process of members of the Judicial Selection Commission, which nominates Supreme Court judges to the governor."

And the Lawyers Lobby likes things just the way they are . . . no accountability and no transparency.

On Mumpower's mind . . . maybe on his agenda

From reading this article, (Mumpower details GOP agenda | www.tennessean.com) it is comforting to see that GOP leaders appreciate the significance of judicial selection, but I see too much equivocation to believe they actually will abide by the Constitutional requirement for contested elections. Incidentally, the article by Theo Emery is one of the best on the issue that I've read:

Judicial selection has been a perennial issue in Tennessee. Though the state constitution requires election of judges, the so-called "Tennessee Plan" from the 1970s created the Judicial Selection Commission, which reviews qualifications of potential judges, then recommends a slate from which the governor chooses. Judges then maintain their seats through retention elections.

Most appointments to the commission are limited to candidates from lists provided by a range of legal groups, a provision that many Republicans and constitutionalists say have made the bench more liberal.

Last session, Lt. Gov. Ron Ramsey proposed changes to the system intended to loosen the requirements for the commission membership, but there was no action on the plan by the end of session.

The commission is in a twilight status called "wind-down," which means the entire selection system will disappear after June 30 if the General Assembly doesn't revamp or renew the commission.

If Tennessee dropped its current selection process, it would be the first state to revert to electing all of its judges.

The framers would disagree . . .

Nice overview of the "Tennessee Plan" by a Knoxville attorney, though I disagree with his implication that selection by committee (aka "merit selection") and certainly Tennessee's current constitution-scoffing system, is a "republican" concept. There's no doubt, however, that election by judges in contested elections can be characterized as "democratic."

Unfortunately, Mr. Schmid fails to address glaring inconsistencies between a Federal model for selecting judges and the requirements for judicial selection which are spelled out in our state constitution.

Heck, let's just read the Constitution

They're talking judicial selection over in East Tennessee. (KnoxNews: "Process to pick judges may change")

From the article: ". . . Sen. Doug Overbey, a lawyer and Republican from Maryville who represents Blount and Sevier counties, said a state Supreme Court had ruled that the process is constitutional.

He said he had talked at length with former state Supreme Court Justice William Barker about it. Barker, a Republican from Chattanooga and now retired, said the framers of the state's constitution intended for the judicial branch not to be political, Overbey said.

"Running nonpartisan doesn't make it nonpolitical," he said.

He said he supports the Tennessee plan for choosing judges although he would consider changing the way members of the nominating commission are selected and the way of sending three names to the governor for his consideration."

With all due respect to former Supreme Court Justice Barker and State Senator Overbey, I don't see how the framers could have required that judges "be elected by the qualified voters" and at the same time have "intended for the judicial branch not to be political." Why purport to read minds when we can read words?

Kudos to McNally, Burchett, Haynes, and (Reps.) Brooks & Dunn (I couldn't resist).

Correcting the, uh, law

In their weekly email the folks at "People for the American Way" characterize Obama's first bill signing as "correct[ing] the Court," implying that the Court had committed some kind of injustice and needed correction:

Looking Back on Ledbetter

In 2007, the Supreme Court's extremely narrow interpretation of a civil rights law in Ledbetter v. Goodyear limited a worker's ability to be compensated for discrimination. People For the American Way was quick to share the story Lilly Ledbetter, the plaintiff in the case, and to help start the ball rolling on legislation to "correct the Court" by amending the law to more explicitly protect workers from discrimination.

Actually, that's how our gov't is supposed to work. The Supreme Court accurately interpreted the law as written. The duly elected legislature changed the law. All is going according to plan.