JUDICIAL SELECTION COMMISSION:
The State Constitution requires that the voters actually elect their judges. Article VI, Section 3: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”
Despite this very clear language, our Supreme Court and Appellate Judges are not ‘elected’. The Governor chooses these justices/judges from a slate given to him by the Judicial Selection Commission. Then when they are ‘up for election’ the voter only gets to decide whether or not to ‘retain’ these men and women on a ‘yes’ or ‘no’ vote. This is referred to as the “Tennessee Plan.”
This Commission was not re-authorized last year and is in a period of ‘wind down’ which will end this summer with the Commission simply going away.
The decision that the legislature must make is whether to actually follow the State Constitution or to change the Constitution to support some other plan. Remember, the people of have never consented to this ‘retention election’ plan.
A flurry of bills are now in motion and the language and amendments are now under review.
On Tuesday, April 7th, testimony was heard on the Constitutionality of the “Tennessee Plan” in the Civil Practice Subcommittee. Several testified, but no one gave a more impassioned plea for following the Constitution that John Jay Hooker. I urge you to go HERE and move the blue slide over to 25:10. For more details on the Judicial Selection Commission, go HERE.
FOR IMPORTANT BACKGROUND ON THE JUDICIAL PROCESS AND EXCERPTS FROM THE TENNESSEE CONSTITUTION, GO HERE
Makeup of the Judicial Selection Commission:
The Tennessee Judicial selection Commission consists of three Members nominated by the Tennessee Trial Lawyers Association, three members nominated by the Tennessee Criminal Defense Layers Association, three members nominated by the Tennessee Bar Association, five lawyer members that are not criminal or personal injury attorneys, three members nominated by the Tennessee District Attorney's Conference and three non-lawyer members. The three non-governmental nominating organizations must have a representative for Eastern, Middle, and Western Tennessee.
A HISTORY OF JUDICIAL SELECTION IN TENNESSEE
1796: The first Tennessee Constitution gives the state legislature authority to appoint judges of "superior and inferior courts," who are given life tenure. Most of the original states had judges appointed by the governor or legislature.
1809: The Tennessee Supreme Court was created.
1834: During the populist era of "Jacksonian Democracy," many states move to direct election of judges. The Tennessee Constitutional Convention of 1834 considers recommending elected judges but does not. The Tennessee Supreme Court becomes exclusively an appellate court.
1853: Tennesseans approve a state constitutional amendment (Article VI, Sec. 3) providing that all judges "shall be elected by the qualified voters" to terms of eight years.
1870: Tennesseans approve a post-Civil War constitutional amendment giving the legislature "power to prescribe such rules as may be necessary to carry out" the provisions of Article VI, Sec. 2, which established the state Supreme Court. Tennessee's method of selecting its judges would remain unchanged for more than 100 years.
1937-40: Progressive groups begin advocating for "merit selection" of judges to lessen the influence of politics. Merit selection typically involved appointment of judges by the governor from nominees selected by commissions, followed by retention elections in which voters decide whether a judge remains on the bench. The American Bar Association endorses merit selection in 1937, and in 1940, Missouri becomes the first state to change from popular election to merit selection.
1971: The Tennessee legislature adopts a new merit-selection "Missouri Plan," in which all appellate court judges -- judges on the Court of Appeals, Court of Criminal Appeals and state Supreme Court -- are initially appointed by the governor, from nominees selected by an Appellate Court Nominating Commission. The judges then run in "yes" or "no" retention referendums at the next biennial statewide election, and every eight years thereafter. Direct, contested elections remain for trial judges.
1973: The Tennessee Supreme Court upholds the constitutionality of the new system, saying that retention referendums qualify as "elections."
1974: Climaxing a political battle between Republican Gov. Winfield Dunn and the Democratic legislature, the legislature removes the five Supreme Court justices from the merit-selection plan and returns them to direct popular election, while Court of Appeals and Criminal Appeals judges remain under the retention election system.
1977: The last Tennessee Constitutional Convention ever held proposes 13 amendments to the state Constitution on a wide array of subjects, including allowing two consecutive gubernatorial terms, restructuring county governments, giving the legislature authority to set maximum interest rates, lowering the voting age from 21 to 18 and repealing a prohibition against interracial marriage. Voters approve 12 of the 13 amendments, rejecting only an amendment that would have completely restructured the court system, including repeal of the provision requiring judges to be "elected" and providing for their appointment by the governor from three nominees recommended by a commission and retention elections at the end of six-year terms.
1994: The state legislature adopts the "Tennessee Plan" for selecting all of its appellate court judges, including the Supreme Court justices. The Tennessee Plan provides for appointment of appellate judges by the governor, from nominees selected by a Judicial Selection Commission. Voters later decide in uncontested "yes" or "no" referendums whether to retain them on the bench. A Judicial Evaluation Commission is created to evaluate judges and its recommendations on each appellate judge appear on the retention election ballot with the judge's name. If the commission does not recommend the re-election of a judge, that judge must run in a contested election in which other candidates may appear on the ballot.
1996-98: Two lawsuits challenging the constitutionality of the Tennessee Plan and specifically its retention referendums are filed. In both cases, the Tennessee Plan is upheld.
2008: Legislation creating the Judicial Selection Commission and Judicial Evaluation Commission expires, or "sunsets," under the state's Governmental Entity Review Act and the state legislature declines to renew it, putting both into a one-year "wind down."
2009: Experts on both sides of the issue agree that if the two commissions are not renewed, Tennessee will revert to direct elections of its appellate judges on July 1. The legislature is considering whether to renew the commissions -- and by extension, the Tennessee Plan.
Sources: Tennessee Law Review articles by Brian T. Fitzpatrick, Penny J. White and Malia Reddick.