The Debate Continues in Tennessee
June 19, 2008
Business TN Magazine has published a fascinating back-and-forth between Vanderbilt Law Professor Brian Fitzpatrick, who recently authored a very important report on merit selection in Tennessee, and C. Barry Ward, an attorney who is a member of Tennessee’s judicial nominating commission. Among other things, the interview exposes the elitist rationale behind “merit selection.”
I believe that in a government of the people, by the people, and for the people, the people have a right to choose the judges who will make decisions that affect their lives. Apparently Mr. Ward disagrees. “Who better than lawyers who are practicing in front of judges know what it takes to make a good judge?” Ward asks.
Ward leads off the interview with comments from the Brennan Center for Justice and Tennessee Bar Association praising the commission’s work:
“So we have an independent body [the Brennan Center] saying we are doing okay. The Tennessee Bar Association and its president Marcie Houston just publicly said leave it alone; it’s doing a good job.”
But Fitzpatrick skewers the argument and exposes the agenda of the commission’s supporters:
“I was a fellow at NYU law school before coming to Vanderbilt. The Brennan Center is a very liberal organization. They support merit selection instead of election largely in my view because it produces more liberal judges. That’s their mission….Next, it doesn’t surprise me that the Tennessee Bar Association supports the status quo. The Association is one of five special lawyers groups that have privileges under the current system to select members of the nominating commission. So they are one of the kingmakers with the power to choose who our judges are.”
Ward responds that the commission is necessary to ensure that judges are fair and impartial:
“…I’m disturbed to hear the interjection of the liberal versus conservative viewpoint. When you appear in front of a judge, you don’t want a political judge, a conservative or liberal, you want him to be fair and to give you a good hearing.”
But Fitzpatrick counters that approval by the voters, not selection by a secret committee of lawyers, is the best way to secure a court that will fairly interpret the law:
“We all want judges who do justice. The problem is that people often reasonably disagree about what justice entails. Liberals and conservatives, business and trial lawyers all think of justice in different ways. Who gets to break the tie? Do we have a system where the public does with an election? Or do we have a system where 17 un-elected, unaccountable people –14 of which must be lawyers, including 12 from special lawyers groups –decide what justice is instead of the people of Tennessee? That doesn’t sit well with me. It should involve everyone, not be done behind closed doors with just a few lawyers.”
Amen. Judges should be held accountable for their decisions. The best way to do that is to have the judges run for reelection against an opponent and let the voters decide.
Hopefully, the people of Tennessee will regain their right to vote. Tennessee’s legislature recently failed to reauthorize the commission after demands for reform by Gov. Phil Bredesen to make the commission more transparent and accountable. The commission will expire next year unless the legislature takes action.