By Richard Locker), Memphis Commercial Appeal
May 28, 2009

NASHVILLE – After spirited debates, both houses of the state legislature today approved a temporary restructuring of Tennessee’s system of selecting judges for the state Supreme Court, Court of Appeals and Court of Criminal Appeals.

The Senate approved the measure first, 27-5, and the House of Representatives followed suit on a 58-38 vote this afternoon. But the bill must return to the Senate for consideration of a House amendment on the governor’s ability to choose nominees to fill vacancies on the appellate courts.

Both chambers rejected attempts by conservatives to scrap the 15-year-old system and replace it with direct contested elections for the Tennessee Supreme Court and the two appeals courts.

The bill essentially maintains, for at least three more years, the current system in which applicants for all 29 state appellate court judges are screened and nominated by a commission and then appointed by the governor to fill vacancies. They then stand for retention elections at the next biennial August election, in which voters cast “replace” or “retain” ballots on each.

But the bill also replaces the 17-member Judicial Selection Commission with a 17-member Judicial Nominating Commission effective July 1.

The Senate-passed bill also gives the governor authority to reject two consecutive slates of three nominees each submitted by the commission and instead to choose from any qualified lawyer who had applied to the commission – a major change from the current system.

The House removed that provision from the bill this afternoon, effectively requiring the governor to choose from the six nominees submitted to him by the nominating commission. The Senate will consider that next week.

The current Judicial Selection Commission statute requires the two legislative speakers – of the House and the Senate – to appoint members of the commission mostly from lists of nominees submitted by associations, including those representing trial lawyers, prosecutors, the Tennessee Bar Association, defense attorneys and criminal defense lawyers.

Under the new bill, the two speakers would be free to appoint whomever they choose to the new nominating commission, but 10 of the 17 must be lawyers as opposed to at least 14 under current law.

Senate Republican Leader Mark Norris of Collierville, who presented the new plan, described it as a bridge to hold a state constitutional referendum later to draft a new judicial selection amendment to the state constitution. Norris hopes to have that plan in place by 2014 when the current eight-year term for appellate court judges expires.

Most of the debate focused on whether the current system of gubernatorial appointment combined with retention elections violates the Tennessee Constitution’s provision specifying that judges of the state Supreme Court “shall be elected by the qualified voters of the state.”

But supporters of the current system and the bill said that opening appellate court judgeships to direct popular election forces judicial candidates to raise millions of dollars for statewide campaigns, sometimes from interest groups and individuals who will have cases potentially to be settled by the court.

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