published Thursday, February 9th, 2012

Don't enshrine flawed judge selection process in Tennessee Constitution

The Tennessee Constitution calls for the popular election of state Supreme Court and appellate judges.

Instead, Tennessee has had since the 1970s a system in which judges are first appointed by the governor, and then serve for a period of time before there is a public, yes-no vote on whether they will be retained.

That process supposedly removes politics from the process. But in reality, it merely keeps judges from having to be accountable to the voting public for their decisions.

With no opponents permitted to seek election in the yes-no retention votes, there is often very little interest in or notice of those retention elections, and it is extremely rare for a judge to be voted out.

As Brian T. Fitzpatrick, a law professor at Vanderbilt University, wrote in the Times Free Press in 2008: "[A]lthough there have been 146 retention referendums in Tennessee since 1971, in only one did the public vote against retention. This means that incumbents are retained 99.3 percent of the time. Is that an election or a coronation?"

There is also no reason to think members of the panel that nominates judges for the governor's consideration are not influenced by politics themselves.

Plainly, the wisest course of action in Tennessee would be to return to meaningful, contested elections, which is what the state had for most of its history.

Unfortunately, however, Gov. Bill Haslam and some leaders in the General Assembly are instead pushing for a constitutional amendment to make the current, flawed appointment-and-retention-vote system permanent. If lawmakers approve the amendment, it would go before Tennessee's voters in 2014.

That would be unwise and should be rejected by both lawmakers and the voting public.

Meanwhile, the state should return to the constitutional system of allowing a meaningful public vote on appellate judges.

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