“Busting The Monopoly On Judicial Selection” In Tennessee
June 15, 2009
“The lawyers who have dominated judicial selection are getting put back in their place,” says a Wall Street Journal editorial today about the moves the Tennessee legislature took last week to modify the state’s so-called “merit” system for selecting judges. The new system takes the power of choosing who sits on the judicial nominating commission away from legal special interests and gives it to elected officials. That reform, along with requiring the commission to come out from behind closed doors and meet in public, is “a good first step toward bringing transparency and accountability to those judging the judges.”
As I wrote in my June 2nd post, a critical test was whether the legislature adopted a proposal in the Senate bill which would have allowed the governor to reject two slates of the commission’s nominees and choose any qualified judicial candidate. While this reform was stripped out of the final version, the Journal argues it should be reconsidered when the legislature takes up Round 2 of fixing Tennessee’s broken judicial selection system:
“In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it’s dysfunctional, the Governor should be allowed to take the reins.”
This is right, of course, but the real solution can be found in Tennessee’s Constitution, which gives the power to choose judges to the state’s voters. Nevertheless, Tennessee’s reform effort clearly signals a deep dissatisfaction with elitist schemes to elevate special interests above the people when it comes to deciding who will have the honor of serving the public on the bench.
Update: In addition to today’s editorial on Tennessee , the Wall Street Journal editorial page kept the judicial election faith over the weekend by praising the failure of some nasty anti-tort reform legislation in Texas. (A Ten Gallon hat tip to ATRA and TCJL)
Tennessee Weakens Judicial Star Chamber
June 2, 2009
Tennessee’s governor will have more power over judicial nominations and legal special interests will have fewer seats on the state’s judicial nominating commission. The changes come following votes in the House and Senate to extend the commission through 2012, reports the Tennessean.
Both the House and Senate versions allow the governor to reject the commission’s first slate of nominees and ask for a new one. But the Senate bill has a provision with the potential to break the trial bar’s strangle hold on the judicial selection process. Under its version, the governor can reject both slates and then choose any qualified applicant – a compromise I first proposed here on April 11. This would make the elected governor fully accountable for judicial choices and judges themselves accountable, albeit indirectly, to the people. Allan Ramsaur, executive director of the Tennessee Bar Association, says both versions are OK with him, which should provide enough political cover for House members worried about offending the state’s legal poo-bahs.
Vanderbilt University Law Professor Brian Fitzpatrick noted the significance of this small, but crucial difference:
“No state with a merit system has ever taken the power to select judges away from the commission and given it back to an elected official.”
While both bills cut the number of lawyers on the 17-member panel from 14 to 10, lawyers will still hold a majority – a step in the right direction, but a move unlikely to quiet supporters of democratic elections (like me) who believe special interests have far too much power to pick judges.
Judgesonmerit.org – which has spent 20 years lobbying to revoke the constitutional right of Pennsylvanians to elect their judges – is publicly clucking over this “victory,” but they must privately realize the case for selecting judges in secret by unelected, unaccountable tribunals controlled by legal special interests has been dealt a significant (if not yet fatal) blow.
More Lobbying By Judges In Tennessee
April 29, 2009
With just 62 days until Tennessee’s “merit” selection system expires, blogger Terry Frank has been monitoring the ongoing lobbying activities of several sitting judges, including members of the Supreme Court, who are using their offices to try to defeat legislation that would make judges more accountable and the judicial selection process more transparent. Ms. Frank notes that Canon 2 Sec. B of Tennessee’s judicial Code of Conduct requires that judges not “lend the prestige of judicial office to advance the private interests of the judge or others;” And:
“As Holder, Koch, Wade and Kirby are all sitting judges with a stake in the legislative outcome so to speak, are they lending the prestige of their office to advance what will benefit them personally? It looks like it to me.”
Sec. B also says “judicial letterhead must not be used for conducting a judge’s personal business.” While Ms. Frank agrees that judges have First Amendment rights like anyone else:
“ … they [Justices Koch and Holder] have clearly used their positions to lend greater weight and authority to their opinions regarding passage of this particular legislation. So have Justices Kirby and Wade by denoting their titles/positions on their letterhead.”
Wait a minute – aren’t judges in Tennessee chosen by “merit” selection? And doesn’t “merit” selection ensure that judges will remain cool, aloof, serene … floating above the political fighting and grubby lobbying that consume lesser public servants? Guess not.
The Soros Connection In Tennessee
April 22, 2009
Picking up on yesterday’s Wall Street Journal editorial, Tennessee blogger Terry Frank asks what role hedge fund billionaire George Soros or his organizations are playing in the ongoing battle over Tennessee’s judicial selection system. Mr. Soros, of course, funnels millions to groups like Justice at Stake, which is lobbying to abolish democratic judicial elections in states across America and impose “merit” selection systems like the one under fire in Tennessee, where a committee dominated by elite legal special interests meets in secret to anoint judges.
Chief Justice Turns Into Chief Lobbyist In Tennessee
April 17, 2009
Tennessee Chief Justice Janice Holder waded into the debate over Tennessee’s soon to expire “merit” selection system, mocking the idea that she or her colleagues on the Supreme Court should be accountable to the people through democratic elections as “ridiculous.” With the Chief Justice now acting as the Chief Lobbyist against the Tennessee Constitution’s provision that judges “shall be elected by the qualified voters,” at least we can dispense with the pretense that judges chosen by secret commission can be counted on to stay serene and aloof from politics.
Chief Justice Holder opened her campaign with a silly analogy comparing judges to basketball referees. As reported by Jackson Baker at the Politics Beat Blog, Holder presented “a facetious proposal to elect officials taking part in NCAA basketball tournaments, allowing them to raise money, use attack ads against their election opponents and ‘show bits and pieces of video of some of these games where there were bad calls.”
Let’s think about that for a minute.
NCAA basketball referees are accountable for their “bad calls” and can be replaced if their performance slips; Tennessee’s judges are accountable to no one and it’s almost impossible to replace one. When an NCAA referee makes the wrong decision, it only impacts one game; when a Tennessee judge makes the wrong decision, companies can be wiped out, jobs can be lost, property seized, families undermined, schools restructured. NCAA referees can’t make up new rules in the middle of the game; judges can (and do) make up new rules whenever they want. NCAA referees are private citizens; Tennessee judges are public servants.
But Chief Justice Holder’s speech wasn’t just silly, it may have been unethical, according to Tennessee Lt. Gov. Ron Ramsey:
“I don’t know exactly how far that goes and still be ethical, to be honest, for them to be out here speaking to Rotary Clubs and Kiwanis clubs lobbying for a bill. That seems to be against their code of ethics.”
Oh, and one more thing: Tennessee’s Constitution specifically provides that judges “shall be elected by the qualified voters of the state.” As far as I know, there’s nothing in Tennessee’s Constitution about NCAA basketball referees.
HT: Ned Williams
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?
81 Days and Counting In Tennessee
April 11, 2009
Tennessee’s star chamber for picking judges is set to expire in 81 days unless it is reauthorized by the state legislature. Prospects for renewal got dimmer today, as Tennessee Lt. Gov. Ron Ramsey “has decided the Judicial Selection Commission should be scrapped,” according to a report in the Tennessee Journal. Supporters of the current system – where a committee controlled by legal special interest groups meets in secret to pick judges – “are at a decided disadvantage;”
“ … opponents don’t have to do anything to get rid of the judicial selection and evaluation commissions. They’ll be gone unless both houses take affirmative action to save them. Unless Ramsey chances his position, the odds that the Senate will take such action aren’t strong.”
Since 1870, Tennessee’s Constitution has specifically prescribed that judges “shall be elected by the qualified voters of the state.” That didn’t stop the legislature from ending democratic elections in 1971 and handing control of judicial selection to a lawyer-dominated committee. In 1977, 13 amendments to Tennessee’s Constitution were put before voters, including one that would have scrapped all that troublesome language about judges being “elected” and replaced it with the “merit” selection provision. Every amendment was adopted by the voters except that one.
Gov. Bredesen – who fought unsuccessfully last year to require the judicial selection commission to come out from behind closed doors – says the screening the commission provides is an important part of the judicial selection process. He has a point. So here’s a compromise: The commission can continue to review candidates (in public preferably, but in private if commissioners insist) and pass along recommendations to the governor, but the governor would not be bound by these choices and could pick from all qualified candidates in the state. That way the governor could carefully weigh the input of some of Tennessee’s top legal minds, but would still be accountable to the voters because the ultimate responsibility for the decision would be his/hers.
It’s a compromise “merit” selection proponents should consider – because the clock is ticking.
Countdown In Tennessee
April 7, 2009
With fewer than 90 days remaining before Tennessee’s judicial selection star chamber expires, legislators are beavering away on a reform package that can win enough votes to save the state’s “merit” selection system. The Tennessee Journal reports that House Republican Joe McCord is pushing legislation that would reduce the influence of legal special interest groups when it comes to picking members of the judicial selection commission. As Tennessee Lt. Gov. Ron Ramsey has pointed out, “by law” at least 75 percent of the commissioners who decide who will control one-third of Tennessee’s state government are hand-picked by special interests like the Tennessee Trial Lawyers Association. Under Rep. McCord’s bill, the House and Senate speakers would no longer be bound to pick from a list of special interest favorites.
Rep. McCord’s bill is a step in the right direction. The Nashville Post is reporting that Lt. Gov. Ron Ramsey will be presenting another step of his own when he introduces legislation this week that would create a gubernatorial appointment and retention election system.
The best solution: restore democratic judicial elections as called for in Tennessee’s Constitution.
Rescuing Democracy in the Volunteer State
March 9, 2009
Tennessee’s “merit” selection system is on life support and will expire on June 30 unless the legislature reauthorizes it. The Tennessee Journal reports lawmakers have filed 20 separate bills in an attempt to win enough votes to ensure its survival. Among the reforms offered:
- Requiring Senate confirmation of judicial appointments;
- Raising the threshold for retention to 60%;
- Revising the judicial nominating commission’s role to rating judges as “qualified” or “not qualified” rather than submitting approved slates to the governor;
- Bringing the commission out from behind closed doors by making its meetings public;
- Allowing the governor to request a second slate of nominees.
Needless to say, legal special interest groups are lobbying hard to maintain their privileged position when it comes to picking Tennessee judges. According to the newsletter, the state bar association even has its own bill, which would give the House and Senate speakers more leeway in picking commissioners, but would still guarantee that lawyers control all future “merit” selection panels.
Some of these reforms have merit (no pun intended), but they all miss the big picture. Tennessee’s “merit” selection system has failed because an unelected, unaccountable commission dominated by a single special interest group gets to decide who will control 1/3rd of the state government. The best reform of all would be to shut down the secret commissions and revert to the wisdom of Tennessee’s founders, who believed judges, like other public servants, should be chosen by the people.
Absent a return to democratic elections, here’s a compromise solution: Keep the commission, which would allow legal elites to weigh in with their combined wisdom, but let the governor pick any judicial candidate he/she believes is best qualified and not be bound by the commission’s selections. At least that way the governor would be directly accountable to the people of Tennessee for his/her judicial choices.
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.