Several blogs have raised the question about the "constitutionality" of "The Tennessee Plan" and the ramifications of it ever being held "unconstitutional." (Bill Hobbs, Kay Brooks, commenters/TN plan apologists). Of course, the constitutionality issue is important in swaying public opinion, but is there a potential for legal mayhem if some court held that judges seated via the Tennessee Plan were holding their seats illegally?
First, in light of several TN SCt holdings that "selection-followed-by-uncontested/ retention-election" equals "election," it is incorrect to state that the Tennessee Plan is unconstitutional--at least unconstitutional in toto. Certain aspects of it have been held "constitutional" but various aspects of it's consistency with our state constitution have not been (more here) so it is fair to argue that aspects of it may not be "constitutional." While as an attorney I have to admit that such holdings qualify as "legal authority" for "merit selection" advocates, I have to note that said authority would also support the conclusion that it would be "constitutional" to pick state legislators and the governor by a system of appointment and uncontested retention referenda . . . so the "authority" is pretty weak, in my estimation.
As a result, could the system by which we have seated our state Supreme Court Justices* since 1994--if found to be "illegal," render all decisions by judges so selected to be "illegal" and therefore reversible? Not likely.
To begin with, it could take a while before our state Supreme Court could bring itself to accede that "the Tennessee Plan" was unconstitutional. Selecting judges by "The Tennessee Plan" since 1994 has pretty effectively ensured a jurisprudentially Liberal majority on our supreme court for decades to come. Without some different "legal authority" on the question of what "election" meant to the framers of Tennessee's constitution in 1852, there will be no controlling authority to which an attorney could appeal. And given that this is an issue of interpreting a state constitution, most Federal courts will defer to the interpretation of the given state's highest court.
Not to mention, I doubt you could find many trial lawyers (although lawyers who litigate the crap out of the Death Penalty could be an exception) who would be willing to argue in an appellate brief or otherwise that the Tennessee Plan is unconstitutional anyway.
In sum, one can argue that the Tennessee Plan is/was "constitutional" and some justices might hold that there is controlling precedent to that effect. In reality, however, it's constitutionality is very suspect, and the TN Plan's house of cards has pretty much collapsed . . . because whether or not the TN Plan is constitutional is insignificant when one considers that it does not enjoy popular support, as evidenced by recent events. Isn't democracy great?
*I left out intermediate appellate judges because there is a fair argument that such judges--having been created long after election of judges was put into our constitution, were therefore not contemplated by the framers of our constitution and operate under different guidelines. I disagree with this argument, but . . .
Hello world!
6 years ago
4 comments:
Thanks for weighing in, Ned. I've updated my blog post to send folks here to your comments.
The concept of the justices on the Tennessee Supreme Court ruling on whether the means by which the justices on the Tennessee Supreme Court were selected is constitutional is mind-boggling.
They would seem to have an insurmountable conflict-of-interest on the issue that would render invalid any opinion or ruling they would make.
If they ruled the plan constitutional, well, the conflict is obvious - they voted to save their own job and keep from having to run for reelection.
If they ruled the plan unconstitutional it would invalidate their holding the seat on the bench from which they issued the ruling.
It's bizzaro world either way.
If, as now looks more likely, the Tennessee Plan dies off, and supporters of merit selection want to revive it later, they ought to try to do so via a constitutional amendment rather than via statute, so that the constitutionality of it (and public support for it) is not ever in question.
Thanks Kay.
Bill,
Well on at least one of the cases in which they held that the TN Plan was constitutional, all of the judges who heard and ruled on the case were "special" or specially appointed for that case.
But on your point more generally: such issues highlight the importance of voters/officials having confidence that a judge is committed to judicial restraint and separation of powers and rule of law.
And there's no doubt what "merit selection" advocates ought to do (and you can argue, would be wise to do) . . . the reality is that they--for whatever reason, wanted to cut a corner or take a shortcut to their desired end. I have my theories about their reasons . . .
Bill's right (no pun intended). If they want to change the rules...they've got to change the Constitution. This cat is too far out of the bag to do anything less.
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