“Even though we are fire engine red in this state, we haven’t had a Republican attorney general for 200 years. We haven’t had the five members of the state Supreme Court be all Republicans either,” said Chris Hall at the July Midtown Republican Club meeting.
Mr. Hall is an attorney who practices law in Knoxville and commutes from that home to his Collierville home frequently. He feels, as does the legislature, that it is time to correct this imbalance in Tennessee. We have the chance to do it this November with the amendment 2 proposal on the ballot.
“The proposal would change the manner in which we choose these judges,” Hall explained. It would empower the governor to appoint judges subject to confirmation by the general assembly. We (Republicans) have 90% of the legislature, governor and two senators, yet we only have two Republicans out of five on the Supreme Court.” That it is out of step with Tennessee is confirmed by Judgapedia which calls our court the 23rd most liberal in the land.
Our method of determining who sits on the court has changed over time. What we now have are yes/no elections – retention elections – that “are more like Venezuela and Cuba,” Hall says. Currently the governor appoints the Supreme Court justices and the justices appoint the state attorney general. We are the only state in the union that gets its AG this way. The electorate only votes to keep the justices. There are no contested races.
How did we get here?
According to Wikipedia,
“Originally, each justice was elected by the Tennessee General Assembly for life.
An 1853 amendment to the state constitution set judicial terms of office to eight years (even with changes in the election process, the tenure has remained the same ever since) and provided that all judges (including supreme court justices) would be elected by the people. Under this arrangement, a justice could enter office either through gubernatorial appointment (to fill a vacancy) or by winning a partisan election. Either way, the justice would have to stand for reelection during the next general state election.
In 1971, a statute modified this process at the appellate level. Under a modified version of the Missouri Plan, appellate judges (including supreme court justices) would be subjected only to a “Yes/No” retention vote rather than to any challenge from an electoral opponent. Thus it became impossible to become an appellate judge without being appointed by the governor.
The revised statute was subject to litigation. In the case of Higgins v. Dunn (1973), the Court held that the retention elections were constitutional, as the constitution specified only that judges must be elected, without precisely defining what kinds of elections the General Assembly must enact for that purpose. Justice Allison Humphries, in his dissent, opined that the supreme court justices approving the constitutionality of the Modified Missouri Plan had, “like Esau, sold their soul for a mess of pottage” and had made the judicial branch subordinate to the legislative branch.
Partially as a result of that decision, the statute was revised in 1974 to remove Tennessee Supreme Court justices from the plan, yet a 1994 revision to what was now called the “Tennessee Plan” extended it once again to supreme court justices.
The case of DeLaney v. Thompson challenged the statute once more, in 1998. The plaintiffs argued that the process was not an “election” in the sense envisioned by the authors of the state constitution, and that the court in Higgins v. Dunn had been incompetent to render a decision because of its interest in the outcome of the case. DeLaney v. Thompson was appealed to the Tennessee Supreme Court, which, if it had not recused itself in the case of Higgins v. Dunn, recused itself altogether and entirely now. The Governor appointed five temporary replacements to hear this case. That body declined to rule on the constitutionality of the Tennessee Plan, but rather remanded the case on a technicality.
As Hall says, “Dunn became governor in 1970 and the Democrats were concerned Dunn would appoint a Republican to the Supreme Court so they purloined the system” from what the state Constitution reads: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”
So now we’re stuck with a plan that takes all the power out of the hands of the voter and gives it to a commission that sends a list to the governor and gives him 60 days to pick a candidate from the list. In other words, they stack the deck.
“Now there is no competition and no accountability,” Hall notes. “I noticed driving here all the signs for your judicial candidates. You know more about local judges than you will Supreme Court justices. Even as politically savvy as you are, you would have a hard time naming even two state Supreme Court justices. It’s important that you know who they are.”
The amendment would give a little more power to the people, but not as much as Hall would like. “It would mean appellate court and justices appointed by the governor would be subject to approval and confirmation by the legislature.”
“Why don’t we have a real election? I would prefer that. But the reality is that the governor, lietenant governor and the Speaker of the House don’t want a true election of Supreme Court and Circuit court of appeals judges. With them against election, we won’t have it so this is the next best thing. At least it provides a layer of accountability that we haven’t had,” Hall said. Now “who do you complain to if you don’t like them? They don’t answer to anyone.
“This amendment will tell you who voted for them. It’s not a panacea but it’s a compromise.”
Hall is leery of the Tennessee Bar Association and the American Bar Association’s interference because “they have been co-opted by the Democrats. The Tennessee Bar Association is heavily invested in opposing this amendment because they want to protect the Democrats. The Democrats have a powerful lobby of lawyers and are ready to lay down massive amounts of money for this.” As they see their influence diminished electorally, this helps them keep their power.
Hall adds that aside from making rulings, the “Supreme Court isn’t just five people. It’s a huge bureaucracy that governs my profession and what they do effects your lives.”
Hall is urging people to vote for amendment 2.