The system for choosing Tennessee’s top judges is in limbo now that the state legislature has failed to pass a proposal to legitimize Tennessee’s existing merit selection plan.
Last month, Gavel Grab mentioned that measure’s death in the state House. Now a Tennessee Report article has recapped the legislature’s actions and inactions and also examined challenges facing legislators in the not-so-distant future.
Under the existing “Tennessee Plan,” as merit selection for the state’s top judges is called, a Judicial Nominating Commission screens candidates and recommends judges for the bench. But that panel will disband by July 1, 2013, under current law. Allan Ramsaur, executive director of the Tennessee Bar Association, said he was concerned that if legislators press too hard for change, the wheels could come off the state’s judicial selection machine.
Absent the commission, Ramsaur said, Tennessee has no specific provision for exactly how to seat judges on the bench.
Both chambers of the legislature approved a proposal for a process similar to the federal government’s system, with a few differences. This proposal would move toward a constitutional amendment providing for the governor to appoint judges subject to confirmation by the legislature. It would eliminate an existing nominating commission.
Unlike the federal judicial selection process, however, judges would be subject to periodic retention elections. And if legislators did not act within 60 days to reject a governor’s choice, the nominee would be deemed confirmed.
Tennessee bar leaders have strongly opposed this change. They say the current merit selection system has kept politics out of the courts for decades, and warn that a Washington-style appointment system could create the same partisan gridlock seen in federal judicial nominations.
State Sen. Mike Bell, the Government Operations Committee chairman, said he likely would extend the Judicial Nominating Commission for a year at a time, to keep judicial selection moving as long as lawmakers advance a rewrite of the state constitution. Bell also said he was leaving open an option of disbanding the commission, should a constitutional rewrite stall.
For the appointment-and-confirmation version to become law, both chambers would be required to approve it again, by a two-thirds majority, within the next two-year General Assembly; and if that happens, voters would have to approve it on the ballot in 2014.
The Tennessee Constitution states that judges “shall be elected by the qualified voters of the State,” yet Tennessee’s current merit system, which includes retention elections, has been upheld by two state courts and one federal court. Some critics have called the current system unconstitutional.