How Are Judges Chosen In TN?

[The Rabbi]

Anybody know the answer to this?

The only way I found out was by reading the Wall St Journal editorial page. SInce 1977 there has been a remarkable end-run around the state constitution. That seems to have ended last week. My question is why the Tennessean's coverage of it was minimal, at best.

[Guest Phantom6]

Anybody know the answer to this?

The only way I found out was by reading the Wall St Journal editorial page. SInce 1977 there has been a remarkable end-run around the state constitution. That seems to have ended last week. My question is why the Tennessean's coverage of it was minimal, at best.

Well, over here in my neck of the woods we elect 'em but something tells me that that is not what you are going to say when you answer your question for us. I suppose it would depend upon what level of "the bench" you are talking about.

[Guest Revelator]

It starts with the Judicial Selection Commission. The JSC is a group of 17 folks (14 lawyers and 3 non-lawyers) appointed by the speakers of the House and Senate. Various special interest groups get to nominate who gets on the appointment list: the state bar association, the trial lawyers association, the district attorney generals conference, and the criminal defense lawyers association. Whenever there's a vacancy on the bench, the JSC picks three people from all the ones who have applied. The only qualification to apply, I think, is that you be an attorney licensed in Tennessee. After all the applications are in, the JSC holds a public hearing in the area where the vacancy occurred. The public is allowed to attend the hearing, and notice must be given (by newspaper and tv ad and the like). If you attend the hearing, you have the right to voice your opinion (or put it in writing) on the candidates. From there, the JSC picks three candidates that they then submit to the governor, who appoints one. Their appointment is good until August 31 after the next regular August election occuring more than 30 days after the vacancy. After that they have to run for office.

[The Rabbi]

Up until last week you would have been correct, Double After. The state constitution calls for direct election. This scheme was proposed as an amendment in 1977 and defeated decisively. But the legislature went ahead with it anyway. It allows the trial lawyers and members of the bar association to control the process. It has been so political even Gov Bredesen complained about it.

But the legislature had to re-authorize this and they didnt, despite lobbying by Naifeh's wife.

Again my question: why weren't the major news media here reporting this story?

[Guest Revelator]

I thought your question was about the current system--the one that's on the way out. I thought you were wondering how that worked. I've also seen where they shot it down, and it wasn't in my local paper either. I guess the media thinks most people don't care about that kind of stuff, so they're not going to cover it.

[The Rabbi]

I thought your question was about the current system--the one that's on the way out. I thought you were wondering how that worked. I've also seen where they shot it down, and it wasn't in my local paper either. I guess the media thinks most people don't care about that kind of stuff, so they're not going to cover it.

It was less of a question than a query. You explained it perfectly. My thing is that the legislature circumvented the state constitution AND the news media havent reported anything about it--I only found out from the editorial page of the Journal.

[midtennchip]

The "Tennessee Plan," which is how it has been referred to in legal circles since shortly after its inception, is a modification of the Missouri Plan. The Tennessee Plan only applies to the Court of Appeals, Court of Criminal Appeals, and the State Supreme Court. It does not apply to the lower courts, such as General Sessions, Chancery, and Circuit Courts (i.e., the trial courts). Article VI, Section 3 of the Tennessee Constitution states, "The judges of the Supreme Court shall be elected by the qualified voters of the state." Article VI, Section 4 as a similar provision with respect to the lower courts. The argument that the Tennessee Plan is NOT unconstitutional lies in the wording of the up-or-down vote on these judges and justices. A sample of the ballot language is, "Shall Jon R. Smith be elected and retained as Judge, Court of Criminal Appeals, for Middle Tennessee?"

A good article on the issue is available at the link below:

http://www.tennesseepolicy.org/main/article.php?article_id=651

Now, I don't like the idea of our state government violating the state constitution. But, the idea of truly popular elections for judges may not be that much better. Just read John Grisham's latest novel, The Appeal.

On another note, did you know (I didn't and I'm a lawyer) that the Tennessee Constitution does not allow "any department of the government of this State" to declare martial law? TN Const. Article I, Section 25. Let's hope they don't treat this the way they've treated the judicial elections.

[Guest grimel]

Poorly, very poorly.

[Guest Len]

Rabbi, not sure where you've been, but the demise of The Tennessee Plan has been major news around the state the last couple weeks of the legislature. Even The Tennessean, a paper that does not deserve to line my birdcage, had some news on it. Also got plenty of coverage on left-leaning blogs as the renewal of the plan was thwarted by Republicans in the state Senate.

I could not imagine the state of things if appellate and supreme court justices had to stand for initial election (as it is, they stand for retention elections). Talk about a political minefield...

The current system, albeit not perfect, is preferable to direct election as politics plays a lesser role in the process. Word is that it is "unlikely" we will revert to direct elections of upper-level judges in Tennessee. The Tennessee Plan is now in a one-year sunset. The General Assembly can reauthorize it or something new next year. They likely will. What that looks like depends on whether the Senate swings solid R or D in November. The virtual tie (16-16-1) currently ensures little if anything gets done.

The Tennessee Plan is part of the legacy of John Wilder, probably his most significant accomplishment in the 2nd half of his career. It was as many things were in the Senate in those days, a very bi-partisan solution. I doubt the next plan will be.

[The Rabbi]

Len,

I can say that I appreciate your reliability. If you think the plan is such a great idea then I know for sure it's a stinker of the first order.

Judges should reflect the values of the majority of voters in the state, having passed some minimum qualification. The idea of a judicial elite imposing their choices on the rest of us makes me sick.

[Guest Phantom6]

I'm not sure that I have a tremendous problem with the judges at the appelate level and State Supreme Court being selected as they are. At that level of the courts I really don't want politics involved. I want good legal minds that are respected by their peers which they have in the past and will in the future have to work with.

[The Rabbi]

Politics will be involved one way or another. If you make the qualifications to run in the first place high enough then you are assured of getting a qualified candidate. I would rather a qualified candidate who is answerable to the people than one who owes his position to his buddies in the backroom of the bar association.

[Guest grimel]

I'm not sure that I have a tremendous problem with the judges at the appelate level and State Supreme Court being selected as they are. At that level of the courts I really don't want politics involved. I want good legal minds that are respected by their peers which they have in the past and will in the future have to work with.

I have a problem with the legislature just doing what they want vs what the TN Constitution states. They won't let me carry in Ruby Tuesday, but, they can just do what they want with regards to judges.,

Remember the bimbo judge who refused to hear capital punishment cases because she would have to rule against the defendant? Make the judges accountable to the people and some of the stupidity will go away.

[Guest SomeGuy]

I'm not sure that I have a tremendous problem with the judges at the appelate level and State Supreme Court being selected as they are. At that level of the courts I really don't want politics involved. I want good legal minds that are respected by their peers which they have in the past and will in the future have to work with.

Forgive me, for I laughed harshly at this.

Go look at the groups that makes up the JSC. Tell me Trial Lawyers aren't going to be political. (And which way do they tend to lean politically?)

[Marswolf]

Well, I'd certainly trust the politicians over the voters.

Why don't we just eliminate juries selected impartially too. Let Naifeh appoint the juries.