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VOL. 126 | NO. 213 | Tuesday, November 1, 2011

Judicial Appointments Could Be Big Item for Legislature

By Andy Meek

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The battle lines are firming up over an issue the state legislature is liable to spend considerable time and effort debating during its session that begins in January: judicial appointments and elections.

What’s more, a bill filed in recent weeks by a Republican state senator from Germantown may help steer the discussion, since it incorporates elements from different schools of thought about the current system and over what the state Constitution says about the issue.

State Sen. Brian Kelsey, R-Germantown, has filed Senate Joint Resolution 475, a bill that calls for a constitutional amendment so that state Supreme Court and appellate judges would be appointed in a way that’s similar to the federal model.

In the federal system, the president nominates Supreme Court, appellate and District Court judges, subject to confirmation by the U.S. Senate. Under Kelsey’s plan, the governor would appoint judges to the state Supreme Court and state appellate courts, subject to confirmation from the state Senate.

Judges appointed and confirmed under Kelsey’s model would serve eight-year terms with the possibility of reappointment. His proposed changes would only affect Supreme Court and appellate judges, leaving trial court judges to run in contested elections, as they do now.

The way the system of judicial appointments works in Tennessee, 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.

Supporters argue that yes-no vote fulfills the election mandate in the constitution, while opponents portray it as essentially “stacking the deck” in a way that doesn’t fit the traditional idea of an election.

Kelsey said opponents of the current system generally fall into two camps. He puts himself in the camp with those “who think the constitution is clear and requires elections.” That’s in reference to Article VI of the state constitution, which states 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.”

Lt. Gov. Ron Ramsey cast a tie-breaking vote in a Senate committee earlier this year to keep alive a bill by Knoxville Republican Sen. Stacey Campfield that would eliminate the present system and shift toward contested elections for all appellate judges. That bill also will be up for discussion in January.

In an open letter he distributed earlier this year, Ramsey said he cast his vote not because he favors moving to direct elections but because he wanted to keep alive a debate to change the current judicial appointment system that he believes is unconstitutional.

“My decision to move a bill forward that acknowledges the truths self-evident in our constitution does not mean I believe contested judicial elections are in the best interest of Tennessee,” Ramsey said. “I do not. If I was able to wave a magic wand and decide a new process, I would not choose open election. But I do not get to wave that magic wand.”

That’s evidence of what Kelsey said is the other school of thought on the issue among those who still oppose the state’s current system. They, like Ramsey, still think the current method can be attacked on constitutional grounds, but they don’t necessarily want to swing the pendulum completely the other way toward direct judicial elections, opening the door to heavy campaign spending by special interest groups.

“I’ve listened to those opinions over the last two years or so of this debate and proposed this as a compromise solution between the two positions,” Kelsey said.

The legislature will be particularly motivated to bring some resolution to the issue during the coming session. The Judicial Nominating Commission is scheduled to “sunset” on June 30, 2012, unless it’s reauthorized by the legislature.

Also, the earliest a plan like Kelsey’s that contains a constitutional amendment could be put to a statewide referendum would be 2014. That means even if the legislature wanted to go in that direction, it would have to decide what to do about judicial appointments in the meantime, between the time the nominating commission sunsets and that amendment could be voted on.

“Since the Tennessee Constitution cannot be amended before the August 2014 election of all judges in Tennessee, the General Assembly should immediately move to extend the Tennessee Plan,” said Tennessee Bar Association president and Memphis attorney Danny Van Horn in a statement about Kelsey’s proposal. “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. 

“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.”

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