Memphis attorneys John Ryder and Gary Smith both think it is a bad idea to have contested elections for state appeals court judges.
“Practically speaking, the campaign world is no place for a judge,” Ryder said. “He or she can say nothing more than that they will follow the law as written and not make it up as they go along. That does not lend itself to catchy bumper stickers or 30-second TV spots.”
But they disagree on the motives behind a statewide ballot question Tennessee voters will decide next year that would allow for the appointment of those judges by the governor with confirmation by both houses of the Tennessee legislature.
Smith told a forum of the Memphis chapter of the Federalist Society that he thinks the referendum is a “Trojan horse” designed to fail.
“Those who are proposing it want it to be defeated because the ultimate objective is to get judicial elections,” Smith, past president of the Memphis Bar Association, said at the Oct. 18 forum. “What we are facing here is an all-out effort to undermine the independence of the judiciary, the justice system itself and the eradication of politics from that system.”
Ryder, however, said the idea of judicial selection modeled after the selection of federal judges is a legitimate middle ground.
“You can be opposed to the Tennessee Plan without being in favor of elections. I’m one of those who is,” Ryder said at the same forum.
Ryder and Smith agree that when the Tennessee legislature returns to session in January, legislators are unlikely to bring the Judicial Nominating Commission back to life. The appointed commission that interviewed applicants for appointment and sent three finalists to the governor that the governor had to choose from went out of existence June 30, the end of the previous fiscal year.
The procedure is known as the “Tennessee Plan.”
Ryder and backers of the proposed amendment to the Tennessee Constitution on the ballot in November 2014 call it the “Founding Fathers Plus Plan.” Ryder argued it eliminates the control bar associations have on who makes it to the bench.
The Tennessee Plan “was part of a conspiracy on the part of the American Bar Association to impose its will on the judiciaries of various states,” Ryder said.
“That’s the kind of reactionary rant that you get from bar associations complaining about outside groups fomenting ideas to change the process. It’s foolishness,” he said of Smith’s “Trojan horse” claim.
“Now the people are saying you have too much influence. You’ve got too much control over the process and are displacing the bar associations in the process.”
“The Tennessee Plan works, period,” Smith said. “The bar is not making the decision. … One can argue that lawyers are advantaged on deciding on the qualifications of judges because of what we do and make a pretty good argument. But that commission was not composed entirely of bar lawyers.”
Appointments to the nominating commission were made by the leaders of the Tennessee legislature effective in 2009 when what had been the Judicial Selection Commission became the nominating commission. And 10 of the 17 members had to be attorneys. Prior to 2009, the selection commission was members nominated by various lawyers associations by the areas they practiced in.
The amendment to the Tennessee Constitution that goes on the statewide ballot in November 2014 should lead to a reconsideration of the “Tennessee Plan,” if the amendment fails, Smith said.
Before it went out of existence, the nominating commission sent slates of finalists to Gov. Bill Haslam based on the resignation letters of several appeals court judges who announced they plan to not seek re-election next year on the August ballot but intend to serve out the rest of their current terms, which expire at the end of August, after the retention elections.
The timing leaves open the possibility that no names could be on the retention ballot in August since there wouldn’t be a vacancy until later that month.
The Federalist Society debate at The Madison Hotel came the day after Haslam issued an executive order setting up what amounts to his own Judicial Selection Commission.
The 17-member commission will do what the old panel did under the same procedures and including all of the members of the old commission whose terms had not expired when the old commission went out of business.
Haslam’s executive order followed an opinion from Tennessee Attorney General Bob Cooper that Haslam can continue to make judicial appointments without such a commission in place.