Hopes For A Return To Democratic Elections In Tennessee
January 28, 2009
Last year, the Tennessee legislature chose not to reauthorize the so-called Tennessee Plan for choosing judges, placing the system on course to sunset in mid-2009 unless state lawmakers reach agreement to revive the plan. Under the current system, a small committee dominated by legal special interest groups meets in secret to decide who will sit on the bench. If the plan lapses, voters will see their right to elect judges restored.
Yesterday’s Nashville City Paper has a good update on the debate, including a fascinating back-and-forth between Senator Mark Norris, the Republican Majority Leader, and Daniel Clayton, who runs the Tennessee Trial Lawyers Association. According to Sen. Norris, the issue is clear:
“The Constitution of Tennessee means what it says. Article VI, Sec. 3 states, ‘[t]he Judges of the Supreme Court shall be elected by the qualified voters of the State’….If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”
Clayton responds with the standard argument that elections “turn our appellate judges into politicians” and denies that special interest groups – like his – wield undue influence over the judicial selection process.
“The current plan allows input from all of the major bar association groups across the state.”
I guess this “nobody here but us lawyers” stance is supposed to be reassuring, but it merely reveals how insular Tennessee’s judicial selection process has become. No one would dream of giving, say, auto mechanics or dentists the preeminent role in picking Tennessee’s judges. Since when did lawyers become so omnipotent that they deserve to decide who will control 1/3rd of the state government?
The standard retort from Clayton and his trial lawyer cronies is that voters still have the ultimate say over judges through retention elections. They expect us to be grateful that the lawyers allow us in the room after they’ve made all the important decisions. It’s like a gang of realtors getting together and deciding what house you’re going to live in, then telling you, “don’t worry, in eight years we’ll let you can decide whether you want to keep living there or not.”
Besides, 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 has just been blessed with supremely talented jurists over the past 30 years. Or maybe retention elections are just rubber stamps that don’t mean anything.
Stay posted as the debate heats up when the Tennessee legislature reconvenes on February 9.