The Truth on 2

Lately there have been many mischaracterizations about amendment 2. Before you go with the knee jerk reaction – that the people will lose their right to elect judges! – take a look at this argument sent by the very conservative Senator Brian Kelsey:

The way that Tennessee has been picking judges is blatantly unconstitutional. The Tennessee Constitution states that judges of the Supreme Court “shall be elected by the qualified voters” of the state. Those are the exact same words used to describe a special election to the legislature.
Years ago, however, Tennessee Democrats ignored that language and instead gave the power to select judges to a 17-person unelected, unaccountable panel of mostly lawyers, who recommend three names from whom the governor must choose.
Despite this charade, three separate special Supreme Courts have ruled that “up” means “down,” “down” means “up,” and “election” means “selection.” Therefore, almost all lawyers and every liberal in the state thinks that this Missouri Plan is perfectly constitutional. There’s a reason that 16 of the 17 states to adopt the Missouri Plan bothered to change their state constitution. Tennessee also tried to do so in 1978, but the voters voted it down.
Conservatives rightfully recognize that we have a constitutional crisis in Tennessee that needs resolving. Among conservatives, reasonable minds can disagree on how to best resolve this constitutional question.
When one considers all the constitutions ever written in the history of the world, one must conclude that the wisest group ever assembled to design a constitution was the Founding Fathers of America. Amendment 2 adopts the tried and true system of the American Founding Fathers for choosing judges.
The wisdom of the Founding Fathers was designing as many checks and balances as possible. The Founding Fathers Plan included appointment by the executive with confirmation by the Senate. As Alexander Hamilton wrote of the plan in Federalist Paper 76, “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union.”
Amendment 2 is called the Founding Fathers Plus Plan because it adds two layers of accountability. First, the Senate plus the House must confirm. Second, judges do not have life tenure but are accountable directly to the people via retention election at the end of an 8-year term.
The Founding Fathers Plus Plan also improves upon the Founding Fathers’ system by prohibiting legislative inaction, which is arguably the one flaw of the Founding Fathers’ system. Judges deserve an up or down vote, and Amendment 2 ensures that they receive one. Tennessee lawmakers must vote on judicial nominees within sixty days, or the nominees are confirmed by default. The sixty-day clock runs from either the date of the appointment, if made during the annual legislative session, or the date of the convening of the annual legislative session, if made out of session.
What about the Founding Fathers of the Tennessee Constitution?

What about the Founding Fathers of the Tennessee Constitution?
Like the American Founding Fathers, the Founding Fathers of the Tennessee Constitution in 1796 also opted against contested elections. They favored elected officials appointing judges. It wasn’t until 1853 that the Jacksonian Democrats inserted contested elections for judges into the Tennessee Constitution. That system was designed by Jacksonian Democrats to elect Jacksonian Democrats, and that is exactly what it did for over 100 years. That is also exactly what it would do if we returned to that system.
What is wrong with having contested elections for judges?
Statewide judicial races cost a minimum of $5 million. Those funds will come from plaintiffs’ attorneys, who have a financial incentive to elect liberal judges to hand out higher judgments, which will increase the attorneys’ one-third legal fee from those judgments.
Conservatives may vote against liberal judges, but they will not fund $5 million campaigns to defeat those judges. Nor will the business community. This exact scenario occurred in the August 2014 Supreme Court elections. Conservatives voted against the three Democrat-appointed Supreme Court justices. They did not, however, fund a multi-million campaign to promote their view, and all three liberal justices won.
Isn’t Amendment 2 just placing the Missouri Plan into our constitution?
Amendment 2 is absolutely not a continuation of the Missouri Plan. In fact, a separate, competing amendment would have done just that, but it was thankfully killed by conservatives in the legislature.
The key to the Missouri Plan was the commission made up of 14 unelected, unaccountable lawyers and 3 unelected, unaccountable non-lawyers who reviewed applications for judgeships, picked three names, and sent them to the governor for his selection. Thankfully, conservatives eliminated the nominating commission in 2013. The commission is still referenced and given duties in the law, but when it came up for review, the commission itself was not renewed.
What happens if Amendment 2 fails?
If Amendment 2 fails, there will be chaos in the legislature. Some members will push to revive the nominating commission. Some members will propose contested elections. A majority does not exist for either to pass. Tennessee would be left in limbo. The nominating commission was disbanded in 2013, but it still exists on the books. Currently, Tennessee is relying on one sentence in the law that if the commission does not send any names to the governor, he may pick judges on his own. That is not how the law was designed to work. We need to put this constitution

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