published Sunday, April 19th, 2009

A threat to courts’ integrity

Tennessee’s system of selecting appellate and Supreme Court judges has for years provided an exemplary service to Tennesseans. While voters ultimately elect the judges, they do so under a selection process that preserves judicial independence and integrity by eliminating the traditional corrupting pitfalls of campaign contributions, partisan and ideological agendas, and the power of lobbyists and wealthy special interests.

It’s a system best left intact. So it is stunning that Senate Majority Leader Ron Ramsey — he naturally prefers the honorific of lieutenant governor, since he’s running for governor — is intent on sabotaging the system this year by letting the legislation under which it was authorized expire.

Mr. Ramsey’s excuse for his faulty leadership in the state Senate on this issue is puzzling. He says he supports Tennessee’s present and widely admired judicial election system, but he says he’s not sure it is constitutional — never mind a widely respected ruling by the Tennessee Supreme Court in 1973 that strongly upheld its constitutionality.

If Mr. Ramsey can’t see the merit of that opinion, or accept the informed advice of bipartisan supporters and civic organizations of our judicial election system, he not only leaves his qualifications for governor suspect. He’s also likely to set up a train wreck over the issue. It shouldn’t come to that.

The Legislature created the state’s judicial merit-selection and retention system for appellate and Supreme Court judges in 1971. Three years later, the Legislature impulsively removed the five Supreme Court judges from the system — putting them up again for popular election.

Legislators came to realize over the course of several elections how the integrity of Supreme Court candidates could be bought or compromised in modern, manipulative advertising campaigns. And in 1994, they brought them back under what’s become known as the “Tennessee Plan,” and added some other improvements to the system as well.

As now constructed, candidates for appellate and Supreme Court judgeships are publicly evaluated by an expert, bipartisan 17-member Judicial Evaluation Commission. It selects its top three candidates for submission to the governor, who then selects the appointee. When judges’ terms expire, they may stand for election on a retention ballot, which asks voters if they should be elected to another term. If voters reject them, a new candidate is installed by appointment under the Judicial Evaluation Commission system, and elected or rejected by voters in the following state election.

The Tennessee Plan, as it’s known, has much to recommend it. It effectively deters well-heeled political hacks who run on inflammatory, partisan or biased ideological campaigns that are largely funded by vested interests who want to influence the decisions of appellate and Supreme Court judges.

It also keeps the governor and political cabals from installing political cronies to judgeship vacancies that often are conveniently created in popular-election systems by sitting judges who retire in mid-term for political reasons.

Both parts of the system — judicial evaluation and retention elections — are crucial to keeping quality judges on the bench. Through its bipartisan public hearings, the evaluation commission ensures that aspiring judges are well qualified and unburdened with an excessive ideological agenda. Retention elections negate the need for judge candidates to go begging for millions of dollars from special interests — and from lawyers who practice in their lower courts — for a statewide campaign.

Tennesseans need only consider a West Virginia case now pending before the U.S. Supreme Court to see how ethically corrupt the popular election of high level judges can become. In this case, a West Virginia coal mine owner, Don L. Blankenship — who faced a $50 million judgment against his company by a lower West Virginia court — poured $3 million into a slanted advertising campaign in 2004 to defeat incumbent West Virginia Supreme Court Justice Warren R. McGraw and elect his challenger, Brent D. Benjamin.

After Mr. Benjamin assumed his seat on the high court, he helped deliver a 3-2 majority opinion that threw out the lower court’s $50 million judgment against Mr. Blankenship’s Massey Energy Co., the nation’s fourth-largest coal mining company. Mr. Benjamin refused to recuse himself from the case on the grounds that he had only received $1,000 in a direct campaign contribution from Mr. Massey.

Tennessee clearly does not need this sort of ethical quagmire haunting our court system. But if Mr. Ramsey won’t support legislation to renew the merit-selection and retention system, that’s exactly what may happen.

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moonpie said...

This is very interesting. I was completely ignorant of this process.

You make a good case for the status quo.

I think the opposition would declare this process less than democratic.

However, when you are trying to balance power between legislative and the judicial branches, you may not want exactly the same selection processes.

I guess the danger comes if this 17-member Judicial Evaluation Commission is tainted.

Thanks for the editorial. I will watch this with interest.

April 19, 2009 at 9:10 a.m.
rolando said...

Anytime an elected official -- any of them, regardless of party -- starts questioning the constitutionality of a relatively independent system of selecting judges, I give him/her the old fish eye and start looking for hidden agenda. And I found them. On both sides.

This editorial was, of course, one-sided...that is what editorials are all about.

For an opposing viewpoint by a TSU adjunct prof see: http://www.nashvillecitypaper.com/content/city-voices/guest-commentary-tennessee-plan-selecting-judges-unconstitutional

The Tenn Constitution says the voters will elect judges. Period.

It also says the Legislature can make the rules to place that into effect.

It says nothing about "temporary" appointments, pick-from-a-list-of-three-names, 17-member "bi-partisan" panels or anything like that. But it also says nothing AGAINST them...hence the Tenn Supreme Court ruling giving it the OK.

Leaving a post open until the next election is bad, as is making fundraisers of the judges even though a vote MUST eventually be held.

But is the current system best for Tennesseans? I don't think so. Like moonpie, I suspect any "bipartisan" panel with an odd-number of members because that ALWAYS means one party is in control -- google Naifeh.

Further, I deeply suspect this idea of a panel putting together a list of names and presenting only THREE for the Governor to chose from and essentially rubber stamp one.

A much better way would be for a select, politically mixed staff of attorneys [if there is such a thing] experienced in political arena to prepare the list and present it, in numerical preference, to the Governor for selection. The staff would have no presiding officer per se; no one person overrules anyone.

April 19, 2009 at 6:51 p.m.
nedwilliams said...

Ahh, how to judge whether "the Tennessee Plan" has served Tennesseans in an "exemplary" way? It's not clear from the op/ed how the TFP reached their conclusion, but we can know that commission-based selection of judges has played handmaiden to special interest lawyers' groups. Speaking of "political cabals" . . .

Nonetheless, whatever process is used, it should be consistent with our Constitution--a state's fundamental compact between citizens and their gov't, and Tennessee's constitution dictates that all judges, all legislators and the governor "be elected by the qualified voters."

Ramsey is right to be resisting the Tennessee's Lawyers' Lobby, and should be encouraged to persevere.

The TFP is just parroting the state's elites. Visit us at www.judicialreformcoalition.org for the other side of this debate.

April 25, 2009 at 3:29 p.m.
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