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Speak Out in Favor of Merit Selection as It’s Put to Vote
A resolution has passed both houses of our legislature that will put a proposed constitutional amendment, addressing how appellate level judges are selected, on the ballot in November 2014. The proposed amendment will read in part as follows:
Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.
In November 2014, Tennesseans will vote on the proposed amendment. In order for it to pass, it must receive at least the number of votes equal to 50 percent of those voting in the governor’s race plus one additional vote.
Based on discussions I have had with lawyers in a variety of settings, there is general confusion about what this proposed amendment does and does not do. For example, a recent Tennessean editorial stated that “the Tennessee General Assembly has initiated the process for a constitutional amendment that would make it clear our current process is constitutional.” In the same editorial, the writer later referred to the proposed amendment as a “modification of the current system.” Confused?
The proposed amendment does not make it clear that our “current” process, which I wrote about in the September 2012 President’s Perspective, is constitutional. While the proposed amendment maintains yes-no retention elections for Supreme Court justices and intermediate appellate level judges, the resemblance to our current system ends there. A drastic change will take place if the amendment passes — the independent nominating commission that screens judicial candidates and then submits three names to the governor from which he selects one to fill a vacancy will be eliminated. Instead the proposed amendment contains the language “at the discretion of the governor,” which takes independent merit selection out of the equation for selecting all appellate level judges. The current merit-based selection system is replaced with a system where merit selection is removed in favor of the governor appointing judges who are then confirmed by both houses of the legislature. While the proposed amendment does not address what would happen with trial court vacancies between elections, the current merit selection process is used for filling those vacancies. It would be up to the legislature to determine what process would be used when filling vacancies between elections for trial court judges.
The legislative purpose and intent behind our current method of judicial selection, as found in Tenn. Code Ann. 17-4-101, is to assist the governor in finding and appointing the best qualified persons, to insulate judges from political influence and pressure, improve the administration of justice, enhance the prestige of and respect for the courts by minimizing the necessity of political activities by appellate judges, and to make the courts less political.
According to the Administrative Office of the Court’s website, in addition to considering this legislative declaration, the judicial nominating commission should consider such things as the integrity and moral courage of the applicant; the legal ability and experience of the applicant; the intelligence and wisdom of the applicant; whether the applicant would be deliberate and fair minded in reaching decisions; whether the applicant would be industrious and prompt in performing his or her duties as a judge; whether the personal habits and outside activities of the applicant are compatible with judicial office; and, whether the applicant would be courteous and considerate on the bench.
Merit selection has been in use since 1971 for our intermediate appellant court and since 1994 for our Supreme Court, when the current version of the Tennessee Plan was put into place. Prior to September 1994, there had been one woman who served on the Tennessee Supreme Court and that same woman had been the only woman to serve on the Tennessee Court of Criminal Appeals. What a big difference merit selection and nearly 20 years have made! Under this system, the appointments have been 69 percent men and 31 percent women. Nine percent of those appointed have been members of minorities. Tennessee currently has three women on the five-member Supreme Court, two women and two African-Americans serving on the 12-member Court of Appeals, and two women sitting on the 12-member Court of Criminal Appeals with one of those women being the first African-American woman to serve on an intermediate appellate court in Tennessee. Prior to merit selection for replacing trial bench vacancies between elections, there had been eight women serve as state trial court judges. There are currently 26 female trial court judges out of 152 such judges. Of the current trial court judges, nine judges from diverse backgrounds serve. While Tennessee clearly has a way to go for the judiciary to mirror the general population, progress has been made in the past two decades. Many attribute that progress to merit selection. Tennessee has the most qualified judiciary of any state, and that is also credited to merit selection.
Many of us are concerned that if judicial appointments are at the sole discretion of the governor, the most qualified candidates will not even be known to the governor much less be considered for appointment. Concerns expressed about the proposed amendment itself include the lack of definition of “confirmation,” questions about what happens when judges are appointed out of session, and what happens if those who are appointed are later rejected when the legislature comes into session. Additional questions arise as to what the confirmation process would look like. Imagine the legislature asking detailed questions about every unpopular cause or client a potential judge has represented.
There has been a lot of discussion about how, if the proposed constitutional amendment fails, we will automatically be faced with contested appellate-level judicial elections. That notion makes the proposed amendment appeal to business groups and some members of the bar who are rightly opposed to contested elections for appellate judges. Others believe that if the amendment fails, there will be an opportunity to retain the Tennessee Plan and merit selection, which has twice been held constitutional by two different Tennessee Supreme Courts. If the amendment fails, the TBA, business groups and citizens who care about our justice system could work to enact legislation in early 2015 to continue the Tennessee Plan.
It is my hope that the bar will have the courage and integrity to continue to speak out in favor of merit selection of judges and find a way to preserve the Tennessee Plan.
Have Your Cake and ...
The cliché “you can’t have your cake and eat it too” can refer to having something both ways or to have or get two good things at the same time. Merit selection and retention elections are like that — they are good for the administration of justice and give our citizens a say in judicial selection. That old cliché brings to mind my mother’s favorite cake recipe.
TBA President JACKIE DIXON is a partner with Weatherly McNally & Dixon PLC in Nashville.