Judicial Selection Topic of Debate

By Andy Meek

A leading supporter and an opponent of the way judges are chosen in Tennessee will square off for a debate Friday, Dec. 9, in advance of what’s expected to be significant discussion about the topic among state lawmakers in 2012.

Danny Van Horn, president of the Tennessee Bar Association and a supporter of extending the so-called “Tennessee Plan” for judicial selection, will debate state Sen. Brian Kelsey, R-Germantown. Kelsey has filed a bill to change the state’s judicial selection and put it more in line with a federal model.

Their debate will come during a gathering of the Memphis chapter of the Federalist Society at Downtown’s Madison Hotel from 11:30 a.m. to 1 p.m. It will be moderated by U.S. Magistrate Judge Charmiane Claxton.

“The whole judicial selection issue in Tennessee has been a pretty hot topic for the last several years, and this proposal by Sen. Kelsey would change the way we select judges in Tennessee,” said Greg Grisham, co-chair of the local chapter of the Federalist Society.

“It’s an issue we think is important to the public, in addition to lawyers and judges.”

The launching point for their discussion is likely to be Senate Joint Resolution 475 filed recently by Kelsey, which incorporates elements from different schools of thought about the current system and about what the state Constitution says should be done.

Kelsey’s plan calls for a constitutional amendment that would mean state Supreme Court and appellate judges would be appointed in a way that’s similar to the federal model. In the latter system, the president nominates Supreme Court, appellate and District Court judges, subject to confirmation by the U.S. Senate.

Kelsey suggests changing things in Tennessee so that the governor appoints judges to the state Supreme Court and state appellate courts, subject to confirmation from the state Senate.

Judges appointed and confirmed in that new way would serve eight-year terms with the possibility of reappointment. The way it works now, a nominating commission puts forward three names of possible judges to the governor. The governor picks one from that list to become judge, and the judges are then elected in a yes-no vote.

Article VI of the state constitution says that Supreme Court justices “shall be elected by the qualified voters of the state” and that appellate court justices “shall be elected by the qualified voters of their district.”

Supporters of the current system would argue the yes-no vote fulfills the requirement of an election, while opponents like Kelsey think the current system “stacks the deck” in a way that doesn’t fit the traditional idea of an election.

Either way, it’s likely to be the subject of major attention once the Tennessee General Assembly comes back into session in January. The legislature will be more motivated than normal to bring some resolution to the issue, because the judicial nominating commission is scheduled to “sunset” on June 30 unless it’s reauthorized by the legislature.

The earliest a plan like Kelsey’s that contains a constitutional amendment could be put to a statewide referendum would be 2014. That’s why Van Horn thinks the legislature should move to immediately extend the Tennessee Plan.

“Extending the plan, which was revamped in 2009 and which has been held constitutional by every court which has looked at it, will provide needed stability and certainty to the system,” Van Horn said in a statement he distributed after Kelsey filed his bill.

“In the meantime, an amendment to the Tennessee Constitution could firmly ensconce merit selection, performance evaluation and retention elections and avoid the complications of the faux-federal system.”