Tennessean focuses on Judicial Selection

The Tennessean editorial page on Sunday was devoted to the issue of judicial selection. If you're interested, you can read all three op/eds. Suffice it to say, whatever the purported advantages of appointment/retention of judges, opponents of electing judges need to change the Constitution rather than skirting it.

Judge-selection system in state instills trust

Skirting constitution is an abuse of power

Electing judges will only create problems

Did sitting appellate judges get their supper for free?

Conservatives want judges to sing for their supper and submit to contested elections — but will that pimp out the bench? | Jeff Woods | Nashville Scene:

Calling it a threat to their independence and integrity, judges on the state's highest courts are descending into the muddy political trenches of the legislature to try to put down a conservative populist uprising.

The judges are apoplectic over the possibility of a change in state law that they say would put justice up for sale in Tennessee. It would end their comfy, hard-to-lose yes/no elections and force them to hit the hustings like common politicians to shake down fat cats, cut backroom deals, kiss babies, talk tough in TV ads and promise the moon to voters in competitive campaigns.

But having already been placed on the bench by a coalition of powerful special interests and powerful politicians, did sitting appellate judges get their supper for free?

Who says appointment with retention votes for judges is best?

Interesting analysis of the comment from Iowa Supreme Court Justice Mark Cady heralding the Iowa version of choosing judges by commission appointment and retention: ("Iowa’s Crazy Judges, Part II" - By Gary Marx - Bench Memos - National Review Online)

Judges: Politics for me but not for thee

It's no shock that appellate and supreme court judges in Tennessee are political, but it is shocking to hear them claim that they oppose elections "because politics and money corrupt the judiciary" and yet give heavily to candidates who will protect them from facing contested elections. Tennessee judges donate to politicians who oppose judicial elections | tennessean.com | The Tennessean:

According to Wade, Tennessee's Supreme Court justices and appellate judges uniformly oppose a switch to an electoral selection process.

"Contributing to campaigns from time to time doesn't mean that I cannot and most jurists cannot compartmentalize those issues," Wade said. "All of us have a constitutional right to support any candidate of our choice, and yet when I put on the black robe, partisan politics and friendships play no role.

. . . .

Wade was the most frequent contributor to political campaigns over the past four election cycles among judges from Tennessee's highest courts.

BTW, despite saying repeatedly that these big spending judges gave to both Democrats (who characteristically like the undemocratic and unconstitutional TN Plan) and Republicans (who more often than not oppose the TN Plan), the reporter failed to ask the obvious question (that, or failed to like the answer to said question): were the Republicans who got money from judges supporters of not electing judges?

Well, Republican Doug Overbey--the Maryville lawyer who was just about the only Republican in the Senate who fought to preserve the TN Plan (here, and here), sure doesn't count. Neither would the Republican who faced TN Plan opponent Mike Bell in the primary (story here).  Judges gave money in a primary race?  Someone who makes a campaign contribution in a primary, particularly a primary of the other political party, hardly seems like someone who "contribut[es] to campaigns from time to time."

This is great reporting from Andy Sher of the Chattanooga Times Free Press, Judges' donations draw criticism | Chattanooga Times Free Press, but I have to say that it concerned me to read this statement from the article:

All five Supreme Court justices back the Tennessee Plan for selecting and retaining judges.

Look, because of my experience over on the years on this issue, I was aware that all the Supreme Court justices liked the Tennessee Plan--which ignores the constitution's requirement of contested elections. But it is stunning to think that this is common knowledge. Especially when you consider that they would be the ones deciding on whether a given system complies with the Tennessee Constitution.

And that's the problem with a system that insulates judges from "politics" (read: accountability). The reason that a lot of money is potentially spent on judicial elections is because the persons elected in such elections have a LOT of impact on voters' lives. I guess we voters just need to just leave all this politicking to judges and unaccountable commissions . . .

Irony of buying favor with judges

Nice op/ed from Gail Kerr Tennessean, "Fundraising to Keep Judges from Being Bought is Ironic"):

Lawyers and former judges are raising money from big law firms to try and preserve the current method of seating Tennessee's appellate court judges.

The irony is not lost: Those very legal eagles argue that allowing judges to be popularly elected would create a system in which special interests and big powerful law firms can buy the state's judiciary.

My only quibble is with Kerr's flat assertion that, "Overall, the current system has worked beautifully to place appeals court judges who have followed the rule of law." Who says?

Cross-posted at Tennessee Judicial Reform Blog.

The ABA needs more cowbell!

This WSJ op/ed reports on ABA (American Bar Association) plans to take over the appointment of Federal judges by means of so-called "merit selection." The article highlights the problem with "merit selection"; in particular, do we want the politics of picking judges out in the open or behind closed doors? And I assure you, the process is very political.

Ironically, Tennessee and other states are moving in the opposite direction. It must really be irritating to the ABA, George Soros, et al, that states are refusing to go along with the ABA agenda. Whatever . . . the ABA needs more cowbell!

Standing on stare decisis

Samuel Johnson famously said "patriotism is the last refuge of scoundrels," well it's ironic that stare decisis--if it's all your standing on, may qualify as the last refuge of judicial activists.

Retiring TN Supreme Court Chief Justice William M. Barker has stated in a Nashville City Paper interview that he thinks Tennessee's most recent way of picking judges is best. From the article:

In an interview with The City Paper, Barker said that the state’s way to pick Supreme Court and intermediate appellate judges — called the Tennessee Plan — is the “best of all methods” that states have found."

That's his policy preference and that's just fine. (Incidentally, all the other states in the U.S. which replaced constitutionally-required elections with "merit selection" went to the effort of changing their Constitutions--something Tennessee voters rejected in 1977).

But Barker offers a legal basis for his policy preference by stating that two prior TN Supreme Court opinions have found the so-called "Tennessee Plan" to be "Constitutional" . . . Barker's basis is a legal principle called stare decisis and--in this case, I'd say it is the jurisprudential equivalent of vapid patriotism. (I'll save for another post whether those prior decisions even fairly qualify as "stare decisis").

Stare decisis (pronounced "starry deSEYEsus")literally means "to stand by things decided," and it expresses the principle that prior court decisions must be recognized as precedent. Supposedly, stare decisis is essential for lending predictability to the law.

One thing that really serves to make the law "predictable" is to adhere to what the plain text of the law--the Constitution in this case, says. The text of our state Constitution has painstakingly been arrived at by Constitutional Convention or by the arduous process (in Tennessee) of Constitutional amendment. That's "law" that deserves some deference, I'd say.

Indeed, Barker cites Brown v. Board of Education in supporting the idea of insulating judges from accountability for their rulings. That's a fair argument in favor of Barker's preferred way of picking judges. But it's a good thing that the judges in Brown v. Board of Education didn't hide behind stare decisis in reaching their decision, isn't it?




More on this debate at tennplandebate.org




also posted at tennesseefree.com

Apply now . . . space limited!! Yeah, right.

In the latest installment of Tennessee's Judicial Selection soap opera, only two persons have applied to be considered (note: I disagree with our current system of selecting judges) for appointment to the Tennessee Supreme Court. Two people. And judging from this article on the subject, one of the applicants may have just gotten the proverbial wild hair. ("Chattanooga: Local attorney applies for seat on state Supreme Court")From the article:

A Chattanooga trial attorney has applied for the Tennessee Supreme Court vacancy that will be created this fall when Chief Justice William M. Barker retires.

John W. McClarty, who has practiced law for 32 years and concentrates primarily on civil litigation, said he applied to be a state supreme court justice in order to expand his experience at the appellate level.

(emphasis added). Wow. Only two attorneys in our entire state aspire to sit on the Tennessee Supreme Court.

That being said, given the events of the last couple years, you can hardly blame a person for shying away from the process. It's secretive. Rigged by legal special interest groups. Tainted by political correctness. Unconstitutional. (To be fair, I just threw that last reason on there for good measure. Only a small number of attorneys are bothered by this). I don't know what the history is, but maybe there are a lot of late-filers for such openings. We'll see.

Wilder deserved to lose his "last stand"

Woody Woodruff offers perspective on Wilder's last stand in today's Tennessean. ("Wilder's place in history is secure, but his backing of Tennessee Plan stains it a bit") From the article's opening:

"Larry Daughtrey performed a valuable service for readers of The Tennessean in his column last Sunday about state Sen. John Wilder ('Tennessee will never see another lion king like John Wilder').

His article was a reminder of some of Sen. Wilder's great accomplishments during his decades of public service as Tennessee's lieutenant governor. No doubt, Tennessee is a better place to live because of many of the laws that Sen. Wilder helped to pass. It's sad, however, that the final chapter of his long career was spent in service of a poor cause."

In the remainder of the op/ed, Woodruff demonstrates the kiddie-pool shallowness of Daughtrey's take on the issue.

Constitutionality of (what used to be known as) "the Tennessee Plan"

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 . . .

Now that's progress: "Tennessee Plan" not reauthorized

Sen. John Wilder's effort to revive his Tennessee Plan reauthorization bill failed in the senate just before 8 p.m. this evening. Sen. Rosalind Kurita (D-Clarksville) and Sen. Mike Williams (I-Maynardville) joined all Republican senators in voting not to bypass the Government Operations committee and bring Wilder's bill directly to the floor of the senate.

What this signifies to me is that there is potential for change in our state. Some of you may think, "Merit selection was better . . . it was the best way for us to pick judges . . . and this is a step back for our state."

Perhaps you're right, at least about the best way to pick judges. But this is progress for our state, because despite months of soul force, personality-driven arm-twisting, and teeth-gnashing from the most powerful lobby in the state ("trial lawyers," et al), a majority of state senators did what was right this evening.

Folks, the sky isn't falling. In the coming year we can and will have a debate about what is the best way to select judges in our state. If the "Tennessee Plan" is not reauthorized (newsflash: reauthorization can be achieved by a simple majority vote in both houses), then we'll simply revert to the system we relied upon from the time it was established by Jacksonian Democrats in the mid-1800's until 1994. No biggie.

At the end of the debate, State legislators may conclude that elections are the best way to select judges; but if they conclude otherwise, they need to change the constitution to reflect that preference.

Let the debate begin.

www.tennplandebate.com


From around the state (and beyond):

Terry Frank
VoluntarilyConservative
Dan Pero
Bill Hobbs

Rule of Law vs. Rule of Man--Judicial Selection in TN

If you missed Larry Daughtrey's op/ed in yesterday's Tennessean, I encourage you to give it a read . . . it provides a vignette of the Liberal comfort with "rule of man."

The underlying issue is the so-called "Tennessee Plan"--a blatantly contra-constitutional way of picking judges that (conveniently) has allowed TN Liberals a choke-hold on judicial selection for the past 14 years. Whether you think elections (as required by our constitution) or "merit selection" (as instituted in 1994) is the better way of choosing judges, there's no question which way is mandated in our state constitution. Daughtrey has written off and on about his preference for "merit selection." (He needs to take that up with the ghost of Andrew Jackson).

But in this piece, Daughtrey laments that former "lion king," and Lt. Governor, John Wilder has been reduced to "begging" before an "inconsequential" senate committee when in Wilder's heyday, a "nod or a gesture" would have gotten Wilder whatever he wanted--legislatively speaking.

What a contrast, no? I, for one, am glad that some Tennessee legislators--ones on an "inconsequential" committee (acc. to Daughtrey), are seemingly indifferent to whether John Wilder's feelings might get hurt if they oppose his policy proposals in favor of what our Constitution requires. Daughtrey and his ilk like the present system because they like who is picking the judges . . . and they trust these folks to make the decisions outside the public's view. He may deride opposition to Wilder's pet legislation as veritable elder abuse or actions of a "hard-right breed savor[ing] political power" . . . I'd characterize it as rule of law.

Update: The sympathy vote and how we seat judges in TN

Sorry, but sympathy (for another member's ego) is no basis for supporting a particular policy in the state senate ("Wilder’s judicial plan on rocks as Senate tempers ignite" on Nashville City Paper).

From John Rodgers' report:

One of the signature achievements of former Lt. Gov. John Wilder’s legacy — Tennessee’s method for selecting judges — took another step toward extinction today, causing tempers to flare and accusations of mistreatment to fly.

Wilder (D-Mason), a member of the Senate for 44 years and lieutenant governor and Senate speaker for 36 of those years, is retiring this year from the Senate. The state’s current method for picking judges, called the Tennessee Plan, is one of his top achievements.

. . . .

Tempers flared after the legislation was effectively killed.

Senate Democratic Leader Jim Kyle of Memphis was seen in a hallway confrontation with Sen. Rusty Crowe (R-Johnson City), a member of the government operations panel.

. . . .

Kyle said the Republicans mistreated the 86-year old Wilder by “essentially making John Wilder beg them to vote for the bill.”

“I thought it was a real sad day to treat a member like that,” Kyle said afterwards. “The manner in which John Wilder was treated today would be inappropriate for any senator, particularly a fellow who’s been here for 40 years.”

Sen. Dewayne Bunch (R-Cleveland), another GOP member of the committee, called Kyle’s accusation “ludicrous.” "

Way to go, senate Republicans.

UPDATE: Ironically, TN Democratic Party is complaining that Republicans are trying to reform our judicial selection process so as to appoint activist judges to the state bench. Yes, Dems, and up is down. Oh, and they're outraged at how Sen. John Wilder was treated, too. Give me a break.



Prior posts on this issue here.

Rule of Law on trial in Tennessee

Today's WSJ has a splendid overview of Tennessee's sausage-making scene--the legislature. The struggle is over the scheduled-to-sunset process of placing intermediate appellate court and supreme court judges on the bench. A concern for "rule of law" is a concern for "consistency, transparency and predictability" of the law, and--as the op/ed demonstrates, "rule of law" is at the center of this debate in Tennessee.

And, as the WSJ editorial board hints at but doesn't quite say, the right course--the course that honors rule of law, at this juncture on this issue is to simply do nothing at all.



See also these prior posts (here, here, here and here).

Here's a website (www.tennplandebate.org) with more (pro and con) on the issue of this debate.

Keeping politics out of politics . . .

Tennessee's current judicial selection process (for intermediate appellate courts and the supreme court) was inspired by the so-called Missouri Plan (too bad our system wasn't inspired by the Tennessee Constitution which states "judges shall be elected by the qualified voters of the state"). In any event, there's trouble brewing in Missouri surrounding their trend-setting system, and as the Wall Street Journal points out, the Missouri Plan (and its progeny) are built on a fantastic premise:

"Trying to get politics out of politics is a fantasy exercise. The success of the American system is rooted in checks and balances and the accountability that comes from public scrutiny. Keeping judicial selection democratically accountable is the best insurance for choosing the best judges, and ensuring that they are serving the interests of all citizens."

Tennessee's statute creating our Judicial Selection Commission was scheduled to expire last summer (2007) but the sunset provision was kicked down the lane until this summer. The legislature should comply with the letter and spirit of our Constitution and not extend the current system. Thereafter, if they prefer a process other than popular elections, they should play by the rules and change the Constitution.

Should we elect judges?

In light of the impending battle over judicial selection in Tennessee, I was intrigued to read this AP article this evening: "O'Connor Says Judges Shouldn't Be Elected":

"Retired Supreme Court Justice Sandra Day O'Connor said Wednesday that she'd do away with electing judges and make prosecutors and defense lawyers interchangeable as a way of improving the U.S. justice system."

The battle brewing is the result of a sunset provision of our current system of selecting judges for our Supreme Court, Court of Appeals and Court of Criminal Appeals. What has become known as "The Tennessee Plan" expired in 2007 and was extended another year.

I am skeptical about adopting the English criminal justice system, and I'm not sure that "merit selection" (as opposed to election of judges) "improve[s] the judiciary." That being said, O'Connor's argument could very well carry the day in Tennessee . . . even though it shouldn't. Our Constitution (Art. VI, Sec. III) explicitly dictates popular elections for judges, as it does for other state offices.

Taking politics out of judicial selection . . .

The Nashville City Paper reports here that Governor Phil Bredesen has filed suit against the Judicial Selection Commission's re-submission of Houston Gordon's name for consideration to replace retiring Justice Adolfo Birch. I'll write more about this in a subsequent post, but Tennessee's form of judicial selection ("The Tennessee Plan") pretty clearly is unconstitutional (and I don't say that lightly).

Ironically, advocates of the Tennessee Plan assert that it removes "politics" from the judicial selection process (even though our constitution requires that each judge be "elected by voters," which is pretty "political"). But according to the NCP,

Bredesen said the selection commission nominating Gordon again was “fairly blatant political game playing” and that the panel was trying to “box you in a little bit on who you choose.”

“I think in (the selection panel’s) attempt to be clever and political… they’ve managed to get us both tripped up in the mechanics of this,” Bredesen said. “We need to get it straightened out.”