The Tennessee Plan Has Failed To Remove Politics From Judicial Selection
April 14, 2009
Vanderbilt University Law Professor Brian Fitzpatrick has a new study out through the Federalist Society that absolutely shreds the argument that “merit” selection removes politics from the judicial selection process, as it proponents always claim. Professor Fitzpatrick examined every nomination by Tennessee’s judicial selection commission between January 1995 and July 2008. Read the whole report, but there are some highlights:
- Between 1995 and 2008, the commission nominated “twice as many appellate judges more affiliated with the Democratic Party (67%) than with the Republican Party.”
- The sharp political tilt in nominations is not matched by Tennessee’s voters. “Although 67% of the Tennessee Plan appellate nominees between 1995 and 2008 were more affiliated with the Democratic Party, during the same time period Democratic candidates for the state House received only 51% of votes and Democratic candidates for Tennessee’s federal House delegation received only 49% of votes.
- Regardless of whether the governor was a Democrat or Republican, the majority of nominees the commission sent were more affiliated with the Democratic Party.
Professor Fitzpatrick notes that the Tennessee Code itself makes it clear the entire purpose behind the Tennessee Plan is to “make courts ‘nonpolitical.’” But if “merit” selection is failing to achieve this goal – as it clearly is – what exactly is the Tennessee Plan accomplishing? Here, again, Professor Fitzpatrick provides the answer: Turning judicial selection over to special interest groups.
By law, 14 of the 17 members of Tennessee’s nominating commission must be lawyers. By law, 12 of those 14 are chosen by one of five legal special interest groups, including three from the Tennessee Trial Lawyers Association. Says one commentator quoted by Professor Fitzpatrick: “merit selection does not take politics out of the judicial selection process….It substitutes bar and elitist politics for those of the electorate as a whole.”
Without legislative action, the Tennessee Plan will expire in 77 days. Since proponents of the plan can no longer make the case that the Tennessee Plan removes politics from the judicial selection process, exactly what is the rationale for continuing to deny the citizens of Tennessee their Constitutional right to select the judges who will control one-third of their state government?