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VOL. 129 | NO. 199 | Monday, October 13, 2014

Confusion Rampant on Judicial Selection Issue

By Bill Dries

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The only real controversy locally about the proposed amendment to the Tennessee Constitution on judicial selection is confusion about how the race for Tennessee governor on the same Nov. 4 ballot is connected to the votes on that and three other amendments.

Some social media followers on both sides of the judicial selection issue as well as the amendment on abortion are wrongly advising followers that if they don’t vote in the governor’s race their votes won’t be counted on the amendments.

“That’s false,” said Shelby County Elections Administrator Richard Holden, explaining how the link between the amendments and the governor’s race is a part of the confusion. “In order for a constitutional amendment to pass, it has to get 50 percent plus one of the quantity of votes cast in the governor’s race.”

But that doesn’t mean that if a voter decides not to vote for anyone in the Governor’s race that their votes on the amendments will not count.

While there is opposition to the proposed change in how appellate court judges, including those on the Tennessee Supreme Court, are selected, little of it has surfaced in Shelby County with early voting in the Nov. 4 elections beginning Wednesday, Oct. 15.

The Memphis chapter of The Federalist Society has been the primary local political forum in recent years for those who advocate electing appellate court judges in contested elections instead of the retention model now used.


But when the Memphis group met last week, attorneys John Ryder and Steve Mulroy, the two speakers on the issue at the meeting, were both in favor of the amendment.


“Steve and I rarely agree on political or constitutional issues,” said Ryder, an adjunct law professor at the Vanderbilt University Law School. “But this is one where I think we find ourselves in agreement.”

Mulroy, a former Shelby County Commissioner and law professor at the University of Memphis Cecil C. Humphreys Law School, noted before the forum that he wasn’t necessarily enthusiastic about the change.

The lack of enthusiasm has been expressed by others who have settled because of the multi-part political deal on the issue between the position of keeping the appointment process as it is now and the position of contested elections.

The amendment features several departures from the federal model in which the U.S. Senate approves presidential nominations to the federal bench.

Approval from the state House and state Senate is required – not just the Senate.

The Tennessee legislature would have 60 days to act on a nomination from the governor and if they don’t act, the nominee is confirmed.

And the governor can’t make an end run around the legislature by nominating judges when the legislature is out of session. If there is a nomination when the legislature is out of session, the legislature has 60 days from the start of the next session to vote on the nominee.

If the amendment fails, Ryder and other backers of the amendment are certain the legislature will move quickly to enact popular contested elections of appellate judges with judicial candidates filing to run like candidates for non judicial offices.

If the amendment passes, some parts of the larger discussion are certain to continue even if they don’t result in another amendment in the foreseeable future.

Ryder and Mulroy don’t think trial court judges should be elected in contested elections either and should be appointed.

“Elections are not always the answer,” Ryder began as he talked about a fear of “wave elections” by the framers of the U.S. Constitution, which originally included U.S. senators appointed by governors in addition to appointed federal judges and the electoral college election of the president.

“If the powers are going to be exercised by different branches, if they are going to check and balance each other and serve as different power centers in opposition to each other, they need to have different modes of election so that you don’t have one wave election,” Ryder said. “None of us want to see a wave election in which just in one brief and shining moment in electoral history all of the structures of government are turned over to the other side.”

Mulroy came at the issue from a different perspective that arrives at the same destination.

“The whole process of an election means a judge is supposed to be responsive to the people and to public opinion,” he said. “The inherent thing about a judge is that he’s not supposed to follow public opinion. He’s supposed to follow the law.

“One reason we have a third branch is precisely so that we can protect minorities, individuals, people who are temporarily unpopular for whatever reason – even when the law point in one direction and public opinion point in the other, judges are supposed to follow the law.”

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