Failure To Adopt New Law Might Leave Tennessee Courts Without Judges

Philosophical and political debates aside, Tennessee legislators from the area and state officials agree on this much about judicial selection in their state: Failing to approve new legislation by June 30 would leave them without a legal way to fill appellate court vacancies.
The mechanisms for selecting and retaining judges, in place since 1994, are slated to expire at the end of June, setting up what could be a watershed moment in how Tennessee picks its higher court justices. Or, it could lead to judicial chaos.
The looming deadline has intensified debate among legislators on judicial selection, generating a diversity of options ranging from a similar method to the current merit-based system to unfettered gubernatorial discretion in appointing judges.
Lt. Gov. Ron Ramsey, R-Blountville, a vocal critic of the current system, favors giving the governor carte blanche in appointing appellate court judges. Ramsey currently is running for governor. The 17-member Judicial Selection Commission, including eight members Ramsey appoints as speaker of the Senate, is rife with special-interest politics, he believes.
Both Rep. Jon Lundberg, R-Bristol, and Sen. Mike Faulk, R-Church Hill, strongly believe there should be a merit filter between judicial applicants and the governor’s preference, though they would like a selection commission to be more transparent and diverse. Lundberg has proposed legislation to this effect, which also would revive the expiring commissions for judicial selection and evaluation through 2011.
In interviews last week, all agreed that some legislative action before June 30 is imperative.
Fueling the urgency is an opinion penned by the Tennessee attorney general in late March, concluding that appellate court vacancies after June 30 “could not be filled because there would be no operative statutory procedure” for seating judges.
“If nothing happens, there will be pretty much chaos,” said Daniel Clayton, president of the Tennessee Association for Justice, which has played a role in appointing members to the Judicial Selection Commission. “Something needs to be done.”

The judicial filter
Judicial selection in Tennessee is a hybrid, uneasy compromise that seeks to remove political interests from an inherently political process.
In contrast to Virginia, where legislators nominate and elect judges, Tennessee has a two-tier system that holds partisan elections for trial court judges and authorizes a special body to screen candidates for appellate courts.
The Judicial Selection Commission whittles the applicant pool down to a qualified few, and submits a list of three names to the governor.
The selection commission is designed to be a merit-based provision, filtering out politics from the judiciary. Not everyone agrees.
Rather than extracting politics from the process, the commission is “180 degrees from that,” Ramsey said in an interview last week. The Senate leader believes legal groups like the Tennessee Association for Justice and the District Attorneys General Conference have too much influence, limiting the diversity of the commission – and consequently that of the judicial applicants it sends to the governor.
“Until I was elected lieutenant governor, the Judicial Selection Commission had never had a member from east of Morristown,” Ramsey wrote in an op-ed published in the Bristol Herald Courier last June.
In a policy paper he is circulating throughout the statehouse, Ramsey calls the selection commission “fraught with special interest control,” and declares it has “outlived its usefulness.”
“It should be allowed to expire,” he argues.
Clayton, as well as Lundberg and Faulk, disagree – sticking to the belief that it is important to apply some nonpartisan scrutiny to the pool of judicial applicants before they reach the governor’s desk.
“I think there needs to be a review process of candidates, and not just a simple selection of whoever the governor wants,” said Lundberg, whose legislation alters the commission’s makeup to include five members from the eastern, middle and western divisions of the state – a total of 15 members.

A constitutional question
The disagreement over judicial selection also extends into the area of retention of elected judges. Currently, an evaluation commission submits recommendations on whether to retain or reject sitting appellate court justices. For those who sail through the process, Tennesseans across the state vote “yes” or “no” on whether to retain them for another term.
Ramsey believes such a retention vote is at odds with language in the state’s Constitution, which requires judges to be elected – a view not shared by Lundberg or Faulk.
“Our founding fathers did not think a ‘yes’ or ‘no’ vote as being elected by the qualified voters,” he said, despite two rulings by special judicial panels that decided retention votes are constitutional.
When Supreme Court justices come up for election in 2014, Ramsey is prepared to hold contested elections for their seats – what he views as the constitutional alternative to having a retention election. He advocates placing retention itself on a ballot before voters to decide whether to amend the Constitution.
But Ramsey is uncomfortable with the idea of jurists seeking a berth on an appellate bench swinging across the state to stump and raise campaign money.
“I could see how that could really be problematic – you have to raise millions of dollars to run statewide,” he said.
While his policy paper advocates a contested election for the Supreme Court in August 2014, “I am looking for another way to do it,” he told the Herald Courier.
Another way was indicated in the opinion by Attorney General Robert Cooper, who reasoned that the Constitution allows “incumbent appellate court judges” to remain on the bench “pending further action of the General Assembly to determine the manner of the election of such judges.”
Clayton, representing the “special interests” Ramsey decries, lauded the lieutenant governor for his misgivings about popular elections for the appellate courts.
“We are very encouraged by the fact that Lt. Gov. Ramsey recognizes that our appellate court judges don’t need to be politicians,” he said.
Lundberg and Faulk also oppose popular elections for appellate court judges.
“The most effective judges are not necessarily the most popular,” Lundberg said.
Faulk said his opinion was shaped by his experience as the statewide campaign manager for three Republican candidates in the state’s last contested Supreme Court election.
“That experience led me to the conclusion that some sort of merit-selection process is most appropriate for selecting appellate court judges,” he said.
In interviews, neither Lundberg nor Faulk said they were open to supporting legislation that gives the governor the kind of appointment power advocated by Ramsey. They do, however, support giving the governor a deeper pool than three choices.
Lundberg’s legislation would send to the governor a list of all applicants for the job, stamping their names with a highly qualified, qualified, or not-qualified rating.
Clayton, too, believes the process could be improved by such measures.
Asked what could be improved, he highlighted increasing the diversity on the commission and among the judicial nominees, and increasing the total number nominees.
“Hopefully, reasonable minds will come together and draft something that is ultimately a better plan that what we have had,” he said.

dgilbert@bristolnews.com | (276) 645-2558