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VOL. 122 | NO. 23 | Thursday, February 08, 2007

State Supreme Court Appointment Process Up for Debate

By Amy O. Williams

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Tennessee Supreme Court:
Chief Justice William M. Barker
Justice Janice M. Holder
Justice Gary R. Wade
Justice Cornelia A. Clark
One vacancy
Most recent panel of nominees submitted
to Gov. Phil Bredesen by the
Judicial Selection Commission:
D'Army Bailey - Shelby County Circuit Court Judge, Div. 8, Memphis
J. Houston Gordon - Covington attorney
William C. (Bill) Koch Jr. - Court of Appeals judge, Nashville

The Tennessee Supreme Court is expected to issue a ruling any day that could clear the way for the appointment of a fifth justice to the state's highest court. The seat has been vacant since the fall.

Along the way to that decision, some in the legal community have suggested it might be time to take another look at the state's system for filling vacancies on the Supreme Court.

Memphis attorney Greg Grisham has been following the developments in the process, and said it will be interesting to see what happens.

"It is very important that we have qualified judges, and I think we are probably going to see bills introduced this year that may propose modifying the way we select judges in Tennessee," said Grisham, partner in Weintraub, Stock & Grisham PC. "I think there is a lot of politics in the process, and I don't think there is any way to ever get away from that."

Follow the leader?

Some people, Grisham said, have called for Tennessee to implement a process like what the federal government uses, with the president - or the governor in this case - nominating candidates who are then evaluated and approved by the legislative branch.

"There have been some suggestions that Tennessee should adopt a similar plan where there is more involvement by the Senate and House," Grisham said. "It remains to be seen how it is all going to turn out."

Since it was enacted in 1994, The Tennessee Plan has been the state's method for appointing Supreme Court justices. It calls for applicants to submit their names to the Tennessee Judicial Selection Commission, which is made up of 14 attorneys and three non-lawyers. The members, who serve six-year terms, are appointed from among nominees submitted by various bar associations in the state and the speakers of the Senate and the House.

That commission selects three candidates from the pool of state Supreme Court applicants and presents them to the governor, who then makes an appointment from the three.

"It's been in place for 12 years, so I think lawyers begin to see the value of the overall system," said Allan Ramsaur, executive director of the Tennessee Bar Association. "Yet, nobody likes the circumstance that we're in, and we'd like to see it resolved and get on with the business of the court."

Simply black and white

The issue over the vacant seat began in January 2006, when Tennessee Supreme Court Justices Riley Anderson and Adolpho Birch announced their retirements. Anderson, who is white, and Birch, the state Supreme Court's only black judge, announced they would leave the court at the same time.

Gov. Phil Bredesen filled one of the vacancies with appellate Judge Gary Wade of East Tennessee, who is white.

The Tennessee Judicial Selection Commission then submitted three nominees to Bredesen - Chancellor Richard Dinkins of Nashville, Covington attorney Houston Gordon and Memphis attorney George "Buck" Lewis.

Dinkins, who is black, withdrew from the process citing family reasons, leaving the governor with two white candidates.

Bredesen requested a new panel of candidates, saying he wanted the opportunity to appoint a minority to the seat. The commission sent back two new nominees, Shelby County Circuit Judge D'Army Bailey, who is black, and Nashville appellate Judge Bill Koch Jr., who is white, along with Gordon from the first panel.

Not so fast

The governor sued the commission, saying he had rejected the first panel and wanted a completely new one. Lewis and Gordon then intervened in the suit.

Davidson County Chancellor Ellen Hobbs Lyle ruled in December to uphold Bredesen's decision that he should have a completely new panel of candidates submitted to him.

The case was then appealed to the state Supreme Court. The four justices - Janice Holder, Wade, Cornelia Clark and Chief Justice William Barker - heard oral arguments Feb. 1 on the appeal of Lyle's decision.

The three Memphis-area candidates involved the most in the process - Bailey, Lewis and Gordon - all said they believe The Tennessee Plan should not be abandoned, whether any of them are appointed to the court or not.

"I think we have a very fine Supreme Court," Bailey said.

He said that in his 17 years on the bench, he has seen dedicated, honest and very talented jurists on the Supreme Court.

"I think part of that comes from the independence of the judicial selection commission and the statutory charge it has in making an exacted inquiry to evaluate and come up with the best nominees to the governor," he said. "It is an important check and balance."

Some in the legal community, including Ramsaur, believe the state's system is the best available option.

"I think most lawyers have a pretty good perspective on it," he said. "There have been 76 appointments under The Tennessee Plan, and this is really the first one that has had any material controversy."

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