Tennessee’s Potemkin Judicial “Elections”
July 30, 2008
On August 7, Tennessee voters can head to the polls to lodge an up-or-down vote on two state Supreme Court justices and five appeals court judges, the Knoxville News Sentinel reports.
These so-called retention elections are often promoted by advocates of “merit” selection as a means to give the public a voice in determining who sits on the bench. But legal scholars who have looked at retention elections have concluded they do little more than provide a rubber stamp to the choices of an tiny unelected, unaccountable tribunal of legal elites, which has the real power when it comes to selecting judges.
In one study, Brian Fitzpatrick of Vanderbilt Law School found that of the 146 judges who have stood for retention elections since democratic elections were abolished, 145 were returned to office — the type of results that would have made members of the old Soviet Politburo blush.
Then there’s the question of whether retention elections meets the mandate in Tennessee’s Constitution that judges must be elected by the voters. Professor Fitzpatrick doesn’t think so. Neither does Senator Duane Bunch, who has sponsored a bill to give back the right to vote to Tennessee citizens.
Tennessee’s Judicial Selection Commission will expire next July unless legislators reauthorize it.
Posted by Dan Pero in the categories: Judicial Elections, Tennessee
4 Responses to “Tennessee’s Potemkin Judicial “Elections””
Fitzpatrick wrote that article for the Federalist Society, a conservative policy group. His article, however, does not present any novel theory as to why the Tennessee Plan is unconstitutional. He argues on the language that judges must be “elected by qualified voters of the state.” But this contention has been rejected every time the question has come up to the Tennessee Supreme Court. There have been three cases since the early 1970s. (And all the cases were decided by specially seated panels so that they would not face the obvious conflict of interest in voting on their own elections.)
I don’t understand why you — and Fitzpatrick — keep flogging that dead horse. The question is settled.
Thanks for sharing, “glomarization.” But I’d encourage people to read the white paper (tennplandebate.com) for themselves and draw their own conclusions of what it says–it presents a variety of novel questions.
People should also read the text of the Constitution themselves and note that there is no distinction made between acceptable/Constitutional “elections” for judges and acceptable “elections” for the governor and legislators. Is so-called “merit selection” a “Constitutional” way of “electing” the governor?
As far as flogging things, ironically, efforts to amend the state Constitution in 1977 to provide for “merit selection” of judges (why did they need to amend the Constitution, if retention elections were Constitutional?) was the only referendum OUT OF 13, that was rejected by voters. The question was settled alright, but not to your liking apparently.
[...] retention elections are a sham. As Vanderbilt Law Professor Brian Fitzpatrick has pointed out, 145 out of the 146 judges who have stood for “retention” have been retained. Maybe Tennessee [...]
[...] In Tennessee, 145 out of 146 judges who have run in retention elections since they were adopted in 1971 have been retained; * In [...]