‘2’ Much Confusion

Although Amendment 1 on the November ballot is supposed to be the most contested, since it tackles abortion, Amendment 2 is turning out to be divisive and controversial as well.

This is especially true among Republicans/conservatives.

Amendment 2 concerns changing the way appellate judges are named in our state. Opponents like to draw a picture that a “yes” on 2 means we are forfeiting our rights as per the Tennessee Constitution to elect appellate judges. No matter that we haven’t had any rights in this area since 1971, the libertarian types are adamant that this cannot be allowed.

They are led by Dr. John Avery Emison. He insists, “The real truth behind Amendment 2 is the belief that the Governor is power-to-the-people to be able to pick better judges than the public. This is nothing less than an argument against self-government, and a slap in the face of the Governor’s own supporters. If the people are qualified to elect the Governor, why aren’t the voters who supported him equally qualified to elect the Supreme Court, and other appellate courts? The answer is, ‘Of course, they are.'”

The conservative blog Back in River City adds: “Only when sitting and prospective candidates are forced to participate in contested elections do voters have the opportunity to select judges according to their performance, qualifications, adherence to legal precedents, and legal philosophy. In elections, judges are held accountable for their performance. Bad judges and those who rule in ways inconsistent with the views and values of the people’s majority can be replaced.”

Eddie Settles of Back in River City has been speaking against Amendment Two before civic and political groups. “Amendment Two is not a partisan issue, but a populist issue. It’s about preserving our voting rights. It’s about rethinking the whole matter of who should serve as judges on our highest courts, and who should decide on whether a judicial candidate is qualified. Those who oppose open elections for judges are basically saying that the people aren’t smart enough to make those decisions. If we had open elections and an open nomination process, we could be assured of being able to vet the candidates and make sitting judges accountable.

Sounds good, doesn’t it?

A little background on Emison. He’s no Republican as his book “Lincoln Uber Alles: Dictatorship Comes to America” indicates. I am wary of using people like him as my leader when Republicans John Ryder, Lang Wiseman and Brian Kelsey – all good conservatives with a lot of experience in law and politics – take the other side. In fact, if you google Brian Kelsey and Amendment 2 on this page you will read the cogent arguments he made at our Midtown Republican Club meeting.

I also believe that the essential issue of the amendment boils down to whether you believe the U.S. is a republic or a democracy. It is, of course, a republic. The Founding Fathers did not want a democracy. They believed we should elect representatives to express our will. They knew that the public is fickle and can be shallow and therefore not trustworthy on some issues and decisions.

If anything, this is true today more than in their time. How many people take the time in a local election to vet judicial candidates? Not many even in their own locality where it will directly affect them. Can you imagine how difficult it would be to get voters interested in appellate judicial candidates? How many Americans even know the name of our vice president? Just a shocking few do know.

Some in our party are always chasing a Utopia where once the proper policies are enacted, everything works out perfectly. Utopia or else. No compromise. This utopian world doesn’t exist, never has existed and never will. We have to work in the world we have. I can’t assume my fellow voter will know all the details of his choices.

As for a “no” on 2 taking politics out of the mix, well this is unrealistic, too. See Utopia note above. Politics runs through everyday personal life. It has since Trog had to work with Og in cave man times. Sorry, but politics is here to stay like it or not.

Senator Kelsey has a realistic view, too. He wrote, “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.

“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.”

Well put and that leads us to another issue. If 2 fails what happens? Opponents admit “dunno.” That’s not a good enough answer, is it? They argue that it would send a message to Nashville from the people. Dunno about that! It would have to be an overwhelming no to get their attention.

Meanwhile, we’d be stuck.

I vote for the republic.

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