By Richard Locker, Memphis Commercial Appeal
June 12, 2009

NASHVILLE – Part of the process of nominating state Supreme Court and other appellate judges will be restructured but Tennessee’s basic framework for appointment and retention-election of appellate judges remains intact under a bill lawmakers sent to the governor this afternoon.

The Senate’s concurrence in a House-passed amendment was final legislative action on the hard fought bill.

It essentially maintains, for at least three more years, the current system in which applicants for all 29 state appellate court judges first are screened and nominated by a commission and then appointed by the governor. Then they stand for retention elections — in which voters chose “replace” or “retain” votes — at20the next statewide August election, and then every eight years thereafter.

But the bill also replaces the current 17-member Judicial Selection Commission with a 17-member Judicial Nominating Commission effective July 1. Its function will be identical but unlike the present system, the speakers of the House and Senate will be free to appoint whomever they wish to the new nominating commission as long as 10 of them are lawyers.

Currently the two speakers must choose members from lists submitted by associations, including those representing trial lawyers, prosecutors, the Tennessee Bar Association, defense attorneys and criminal defense lawyers.

The final product disappointed conservative activists who fought for an immediate return to direct, open and contested elections for the five Tennessee Supreme Court justices and the 12 judges on each of the Court of Appeals and Court of Criminal Appeals.

“I’m disappointed that we’ve left this session without a mechanism in place for the people to have their voice heard on this issue,” said Bobbie Patray of Tennessee Eagle Forum. “But it’s not over; there’s always next January,” when the legislature reconvenes.

But advocates of the current cheered the outcome.

“The preservation of merit selection and retention elections is the most important effort of the bar this year and we’re very gratified that we‘ve got that behind us for a couple of years,” said Tennessee Bar Association executive director Alan F. Ramsaur.

“We know we still have some work to do in educating folks about how the plan works and how it gives us a good stable predictable legal environment, while holding judges accountable.”

If Gov. Phil Bredesen lets the bill become law as expected , statewide retention elections will proceed in August 2010 for the two newest appellate judges appointed since the last judicial election, Tennessee Supreme Court Justice Sharon Lee and Court of Appeals Judge John W. McClarty.

Lawmakers originally approved the bill May 28, rejecting efforts by conservatives to scrap the current 15-year-old system and replace it with direct elections for appellate judges.

The Senate this afternoon concurred with an amendment approved by the House that requires the governor to choose a new judge from among six nominees submitted to him by the nominating commission – two separate slates of three nominees for each vacancy. The Senate had earlier approved a version that allowed the governor to reject all six nominees and choose from any candidate who had filed an application with the nominating commission, regardless of whether the commission nominated them.

The legislature will next year consider an effort by Senate Majority Leader Mark Norris, R-Collierville, to call a state constitutional convention that would consider r ewriting the judicial selection article of the state constitution.

The constitution currently requires that all members of the Tennessee Supreme Court “shall be elected by the qualified voters of the state.” Supporters of the current system argue that the retention elections meet that election mandate and 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.

Opponents argue that the current system circumvents the constitution.

“Our position has been to follow the constitution or to change the constitution,” Patray said.

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