Among conservatives/Republicans no issue has been more polarizing than amendment 2.
The amendment reads:
Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.
Former Shelby GOP Chairman Lang Wiseman explained all this at the Lunch Hour Republican Club last week. “It has to do with how appellate court judges are done. There has been a longstanding debate on how they should be elected or selected. It all changed in the 70s when a deal was worked out where the Supreme Court would run, but the appellate judges would not. Then the Legislature changed it and a commission was set up to present candidates to the governor. He picks one and that person is then put on the ballot and voted in a retention election.”
Wiseman then got to the part about 2 that has been so divisive. “But is this system constitutional? The Constitution says the judges shall be elected by the voters, but judges ruled that retention is an election. It creates uncertainty. Are the judges even legally entitled to their jobs?
“This (2) will constitutionalize the process and adds in another check and balance because the Legislature has to approve the picks and does away with the commission. People named to it got ‘rewards.’ This new way will be akin to the federal system where the president makes a selection and the Senate confirms it,” Wiseman explained. “This way the House can weigh in.
“Most of the objection comes from the desire to have a candidate style election. For me, my motto is ‘when in doubt, go with James Madison.’ Different power mandates different systems of power. Judging should not be subjected to direct democracy.”
Wiseman said that his experience in the court room before certain judges showed him that “electing judges may not be the best thing.” He added that some judges have very little experience or abilities and some are too young for the post. “I don’t want someone who is trying to please the electing public,” he said.
He went on to caution those who want to defeat amendment 2. “Some people think if 2 fails we’ll get elections. There is no assurance of that. Second, be careful what you ask for. The GOP has all three branches of government now for the first time since Reconstruction. It won’t be like that forever. There is an ebb and flow to politics and you won’t always be in charge.”
An attendee challenged Wiseman and said the language of the Constitution when it was written in 1823 clearly says “elect.” He complained that the way it has been done and the way this amendment reads, “it’s like a carjacking of the electorate’s rights and now they want the title.” Wiseman responded by saying this amendment does allow the people to decide via their election of the members of the Legislature. “It’s a republican (small r) way vs. a democrat (small d) way.”