By: Ken Whitehouse, NashvillePost.com
January 27, 2009

Members of the Tennessee House of Representatives and State Senate are well accustomed to being judged, but when they reconvene in Nashville next month to begin the working session of the 106th General Assembly, they will have to collectively decide how to select judges.

Last year, the Legislature failed to reach a consensus on what is known as the “Tennessee plan” or in what form it will exist in the future. Some legislators are calling for the direct election of judges while others want to continue a merit-based system.

Because legislators failed to agree on what course of action to take last year they have no choice but to address the issue now. That’s because the current plan reaches its legislative ‘sunset’ later this year and lawmakers must act to put a system in place before they adjourn in May or June.

State Sen. Mark Norris, Republican Majority Leader, has been working on the issue for the past several years. So has Daniel L. Clayton, president of the Tennessee Association for Justice (formerly known as the Tennessee Trial Lawyers Association). It represents two sides of what likely could be a contentious debate.

“The Constitution of Tennessee means what it says,” Norris said. “Article VI, Sec. 3, states, ‘(t)he Judges of the Supreme Court shall be elected by the qualified voters of the State.’ So it is also with the election of judges of the ‘inferior’ courts. If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”

Norris added that until then, the General Assembly must agree upon the means by “which we shall transition from the plan we have to the plan we must have” to assure that the administration of justice is done properly.

According to Clayton, there is already a plan in place that administers justice fairly but it can be improved.

“We are in favor of a plan which brings about a fair and balanced representation of all practices of the law,” he said. “There are always ways to improve the current merit-based system, and we look forward to an open and honest discussion along those lines. We are opposed to turning our appellate judges into politicians who would be forced to raise and spend huge sums of money in an effort to get elected.”

Currently when vacancies arise, those who wish to serve as a judge in the state are interviewed by the Tennessee Judicial Selection Commission, which then whittles down a list of applicants to three that are presented to the governor for selection. The governor can select a finalist or reject the list. If rejected, another list is given to him by the commission.

After a person is selected by the governor, he or she must go before the voters in what is called a retention election. There voters decide whether or not that person remains as a judge. Some judges, such as general sessions judges, however are selected at the county level.

One of the key disputes on Capitol Hill over the past few years has been who controls the real power of appointment. There has been contention among some legislative leaders that special interest groups have too much authority over the selection of judges.

Clayton disagrees.

“It is wrong to say the current plan is run by special interest groups. It isn’t,” he said. “The current plan allows input from all of the major bar association groups across the state. In addition, it has non-lawyer members.”

According to Clayton, the current selection process has produced a very fair and balanced Court, whose members are held in high esteem.

“In addition, the current merit selection process has produced our first female chief justice in Tennessee history,” he said. “Our system of merit selection is highly respected across the United States.”

Norris doesn’t share that view.

“Is it more important to be a highly respected member of the ‘legal community’ than it is to be of the community at large? I think not,” Norris said. “Even the so-called special interest groups admit they run the current plan. The governor would also seem to agree.”

Norris was referring to the controversy over the replacement of Tennessee Supreme Court Justice A. A. Birch, who retired from the bench in 2006. Gov. Phil Bredesen argued that the selection commission did not present him with the most qualified names to choose from and demanded — and received — a new list.

“Who are we to say that what we now have is ‘merit selection’ or ‘merit-based?” Norris said. “The ultimate arbiters of the merit of anyone to administer justice in Tennessee are the people of Tennessee; not those appointed to commissions; not those elected to preside over the commissions others appoint.

“If the people of Tennessee wish to continue the process by which a select group of Tennesseans make their recommendations to a governor elected by the people, rather than directly by the people, then so be it,” he added. “And let the Constitution of Tennessee reflect it accordingly.”

However, there is a fear among many legislators about what type of judges would result from public elections. Some point to former Alabama Supreme Court Chief Justice Roy Moore as an example of something they don’t want to see in Tennessee.

Moore rose to fame for his placement of the Ten Commandments first in his Circuit Court room and then in the Alabama Supreme Court building upon his popular election to the state’s highest court. His steadfast refusal to remove it after being directed to do so by a federal judge resulted in his removal from office in 2003 for violating the Alabama Canons of Judicial Ethics.

Another concern voiced on The Hill is that the popular and direct election of judges would lead to another tier of professional politicians.

“Elections of appellate judges would make it more important for judges to be politicians and experts at raising money, than being highly respected members of the legal community,” Clayton said. “In those states that have elections, millions of dollars from out-of-state special interest groups are poured into those elections. That type of system has caused ethics complaints against judges in other states. That type of system would be bad for Tennessee.”

The Tennessee General Assembly reconvenes on Feb. 9.

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