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.(emphasis mine). Or how about not? McCord and other Republicans would be wise to say "no" to the Lawyer's Lobby on this one.
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.
Saturday, May 30, 2009
Hey, who's driving the bus?
Judicial Selection Bill Clears Senate and House | Humphrey on the Hill | knoxnews.com:
Friday, May 29, 2009
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):
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
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
Thursday, May 28, 2009
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.
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.
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.
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.
Tuesday, May 26, 2009
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:
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.
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