By the end of the week Gov. Bill Haslam plans to appoint three replacement judges to a five-member special Supreme Court to address the constitutionality of Tennessee's judicial selection scheme.
The new appointments became necessary when three of the original judges Haslam chose to hear the case wisely recused themselves on Aug. 31. The recusals came after it was discovered that all three men -- including former Chief Justice William "Mickey" Barker of Signal Mountain -- have ties to a special interest lobbying group called Tennesseans for Fair and Impartial Courts. The outfit has lobbied the General Assembly heavily to uphold the current system of judicial appointment, which is patently unconstitutional.
Haslam, of course, knew of the biases of the judges he chose to appoint to the special Supreme Court, but selected them anyway. Perhaps he didn't think anyone would notice. Maybe he didn't care. At any rate, he didn't hesitate to stack the special Supreme Court with judges who have fought to disregard the state constitution's requirement that judges be elected in the same manner as other political officials. It's obvious the governor wanted to control the outcome of the case before it was even heard.
But why would Haslam rig the court to ensure that the current system of judicial selection would be upheld? It seems there are two reasons -- one sensible, but misguided, and another totally self-serving.
Haslam has professed his discomfort with contested, partisan state judicial elections, which, although guaranteed by the Tennessee Constitution, have not taken place in a generation thanks to a partisan power grab that circumvented the constitution and voters' rights.
While many Tennesseans share Haslam's concerns and would prefer state judges to be removed from the often sordid world of campaigning and fundraising, there is a proper way to replace judicial election with judicial selection. That's by amending the state constitution.
The other reason Haslam prefers the unconstitutional method of judicial appointment is (surprise!) he gets to appoint judges to the Tennessee Supreme Court, the state Court of Appeals and the state Court of Criminal Appeals. It is shameful that a good man and an otherwise reasonably good governor has let his own lust for the power that accompanies appointing judges supersede his oath-sworn duty to uphold the Tennessee Constitution.
The entire process of having this case heard fairly by a panel of impartial judges has been a problem from the start. The regular state Supreme Court justices were disqualified from hearing the case since they were named to the court through the current unconstitutional judicial selection process and are, therefore, defendants in the case. Because the governor gets to name temporary replacement judges to fill in for Supreme Court justices in such cases, the case's plaintiffs -- as well as the voters of this state whose rights have been ignored -- are at the mercy of how objective Haslam is in selecting the court.
Given Haslam's choices for the special Supreme Court so far, Tennesseans have to wonder if the case -- and the state constitution -- will ever have a fair shot.
As Haslam picks the three new individuals who will join the two remaining temporary judges in deciding the case, we implore the governor to choose fair-minded jurors who will hear the case on its merit, rather than on their prejudices.
Even if appointing impartial judges to the case results in the governor losing his ability to appoint state judges (as it most certainly would, given the obvious unconstitutionality of the current method of judicial selection), he should put fairness over his own power.
Then, if the current system is struck down and he still believes that judicial selection is preferable to judicial election, he can lead the charge to properly and legally amend the state constitution to rightfully empower the governor to appoint state judges.