Amendment 2 to the Tennessee Constitution

On Nov. 4, 2014, Tennessee voters will be asked to consider a constitutional amendment (Amendment 2) that will change the way appellate judges are appointed and retained in the state. The Tennessee Bar Association Board of Governors has voted to support the amendment and the association has endorsed the YES on 2 campaign led by Gov. Bill Haslam, former Gov. Phil Bredesen and former U.S. Sen. Fred Thompson. The following resources are being provided to help lawyers and the public understand the issues at stake.

Text of the Amendment

The amendment reads as follows:

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:

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.

Download Senate Joint Resolution 2, which contains the text of the amendment and instructions for ballot consideration.

FAQ About Amendment 2

The TBA has developed the following Frequently Asked Questions piece that addresses a number of issues associated with Amendment 2.

What is the Judicial Selection Amendment?

• The Judicial Selection Amendment, also known as Amendment 2, sets forth the way we select our judges who serve on our statewide appellate courts. The appellate court judges are the five Supreme Court justices, the twelve judges on the Court of Appeals and the twelve judges on the Court of Criminal Appeals.

• The Judicial Selection Amendment will be number two of four proposed amendments on the statewide ballot in November 2014.

• The Judicial Selection Amendment does not change the process for filling vacancies on the trial court bench nor does it change the election process for trial court judges.

Why Do We Need the Judicial Selection Amendment?

• There have been numerous and expensive challenges to the current method of selecting appellate judges. These challenges threaten to destabilize and weaken our judiciary. Passing the Judicial Selection Amendment should end those challenges.

• A stable, fair and impartial judiciary is important to all of us. Moderation and consistency lead to a good social and business climate.

• Amendment 2 protects the right of Tennesseans to vote to retain or replace judges at the end of their terms.

How Does Amendment 2 Give Voice to Tennessee Voters?

• The Judicial Selection Amendment gives Tennesseans a voice in the selection of our appellate judges in three ways: by voting for the governor who proposes the appointments, by voting for state senators and state representatives who confirm or reject the appointments, and by voting to retain or replace judges at the end of their respective terms.

Why Does TBA Support Amendment 2?

• The TBA has supported retention elections for judges on the appellate courts and Supreme Court since the early 1970s. The TBA believes that retention elections, when coupled with methods leading to the selection of the best judges to fill vacancies, has given Tennessee one of the best judiciaries in the country. The appellate judiciary is fair and impartial and provides consistent guidance on Tennessee law.

• As the Tennessee Judicial Selection Amendment is expected to be implemented, the system will give us a way to select the best possible candidate because the system will have independence; provide expert guidance; be made up of a diverse group; have transparency; be completely informed as to the qualifications of the candidates; be deliberate; and will result in a list of the best qualified candidates being recommended to the governor.

What Happens If Amendment 2 Does Not Pass?

• Failure to pass Judicial Selection Amendment could bring more legal challenges and continued disagreements and confusion about the judicial selection system, which could lead to a  destabilizing and weakening of the judiciary.

• Failure to pass Amendment 2 could also lead to contested, partisan elections for appellate judges, which would bring the corrupting factor of money and politics into our appellate courts.

• Tennesseans should choose our own appellate judges, not groups with limitless funds who engage in negative campaign ads rather than addressing the actual qualifications of those on the ballot.

When Do We Vote on Amendment 2?

• This amendment will appear statewide on the ballot as number two of four amendments this fall. Election day is Nov. 4, 2014 and early voting begins on Oct. 15, 2014.

What Else Can I Do to Help?

• Talk to your family, friends, neighbors, and coworkers about voting yes on Amendment 2. Please also visit the Yes on 2 campaign for more information about the amendment and ways you can help ensure its passage.

TBA Resolution of Support

Following a complete review of its policy on judicial selection, the TBA Board of Governors on Oct. 12 reaffirmed its commitment to merit selection to fill judicial vacancies, and voted to support a constitutional amendment that provides for gubernatorial appointment, legislative confirmation and retention elections for judges. The board did so because of assurances that Gov. Bill Haslam would include merit selection in the process via an Executive Order, if the amendment is adopted. The resolution reads as follows:

1. The TBA retains it long-standing policy position favoring merit selection of appellate court judges.

2. In light of the sunset of the Judicial Nomination Commission (“JNC”) and the absence currently of a statutory mechanism for filling vacancies on the trial or appellate courts, the TBA should recommend the adoption of legislation in 2014 to create a mechanism for filling such vacancies. In light of the fact that the voters have SJR2 before them on the November 2014 ballot, the TBA recommends that a mechanism like the now-sunset JNC be put in place to handle vacancies that occur before 7/1/15.

3. Governor Haslam may move forward this fall to appoint a successor to Justice Janice Holder. As such, the TBA should propose language for an Executive Order setting forth a process for such an appointment, in the absence of any statutory provisions.

4. The TBA should oppose any legislation in the 2014 legislative session that seeks to codify the provisions of SJR2 prior to the November, 2014 referendum.

5. The TBA should support SJR2 on the November 2014 ballot as a means to eliminate the possibility of partisan contested elections for appellate court judgeships.

6. Following the results of the November 2014 referendum on SJR2, the TBA will stand ready to assist with crafting a statutory framework and/or Executive Order(s). If SJR2 is adopted, the legislature in 2015 can enact a statute to fill vacancies under the new Constitutional provisions, and the Governor can enter an Executive Order setting forth an appointment process. If SJR2 fails, the legislature can act as it sees fit under the existing Constitutional language. Likely the TBA would advocate to retain the JNC or whatever mechanism is put in place in 2014.

Download a copy of the resolution. Read more about the Tennessee Board of Governor's decision to endorse the amendment.

Yes on 2 Campaign

The TBA is an endorsing organization of the Yes on 2 campaign. Visit the campaign's website to:

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Tennessee Bar Journal President's Column

Read President Jonathan Steen's October Tennessee Bar Journal column, "I Say YES on 2" here:



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Yes on 2 Campaign

The TBA is an endorsing organization of the Yes on 2 campaign. Learn more about the campaign online.



Download President Jonathan Steen's October Tennessee Bar Journal column, "I Say YES on 2" here or read it below.