State Senator Brian Kelsey wrote an op ed in the Nashville Tennessean today in support of Amendment 2.
The way Tennessee has been picking appellate judges is blatantly unconstitutional. Amendment 2 to the state constitution, which is on the Nov. 4 ballot, will fix the problem by drawing upon the wisdom of the Founding Fathers.
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 my special election to the Senate.
In 1971, however, the legislature ignored that language and gave the power to select judges to a 17-person unelected, unaccountable panel of mostly lawyers. The panel then recommended three names to the governor for his selection.
Despite this charade, three separate special Supreme Courts have ruled that “up” means “down,” “down” means “up” and “election” means “selection.” Therefore, most Tennessee lawyers and liberals think the Missouri Plan is perfectly constitutional.
Conservatives rightfully recognize that we have a constitutional crisis. Among conservatives, reasonable minds can disagree on how to best resolve this crisis.
As I considered all the constitutions ever written in the history of the world, I concluded the wisest group that ever designed a constitution was the Founding Fathers of America. Amendment 2 adopts their tried and true system for choosing judges.
The wisdom of the Founding Fathers was to design as many checks and balances as possible. Their plan included appointment by the executive with confirmation by the Senate.
Amendment 2 could be 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 eight-year term.
Amendment 2 also improves upon the Founding Fathers’ system by prohibiting legislative inaction. Judges deserve an up-or-down vote, and Amendment 2 ensures that they receive one within 60 days, or they are confirmed by default.
Like the American Founding Fathers, the Founding Fathers of the Tennessee Constitution opted against contested elections. It wasn’t until 1853 that Jacksonian Democrats inserted contested elections into the constitution.
While a vote for Amendment 2 may seem like forfeiting an ability to vote in contested elections, the reality is that I was born in 1977, and I have never once been allowed to vote in a contested election for an appellate judge.
Amendment 2 is absolutely not a continuation of the Missouri Plan. That constitutional amendment was proposed in the legislature and defeated. The key component of the Missouri Plan, the nominating commission, also was terminated by law last year. Tennessee is currently filling appellate court vacancies as if each were an emergency vacancy, based on a single line in existing law.
If Amendment 2 fails, this constitutional impasse will continue. There is not majority support in the legislature for contested elections. Thankfully, there also is not majority support for reviving the Missouri Plan. Voting “Yes” on Amendment 2 will put the issue to rest by relying on the wisdom of the greatest constitution ever designed.
As Alexander Hamilton wrote 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.”