Tennessee officials are on the verge of violating the law, ignoring the state Constitution and disregarding logic, and no one seems to be putting up much of a fight. No one, that is, except for John Jay Hooker Jr., a Nashville lawyer and former Democratic candidate for governor.
On June 10, Hooker filed a lawsuit in hopes of blocking the appointment of successors to three state appeals court judges who plan to retire in 2014.
Hooker claims that the state's Judicial Nominating Commission, which dissolves at the end of this month, has no right to select a slate of candidates from which the governor will select replacement judges. He further argues that Gov. Bill Haslam doesn't have the authority to appoint these future judges to step in when the three incumbent judges retire more than 14 months from now.
A simple reading of the Tennessee Constitution and a few passages of state law shows that Hooker is right on every count.
Tennesseans of a certain age will remember the catchy jingle that accompanied Hooker's campaign ads when he was nearly elected governor in 1966 and again in 1970. In recent years, however, the 82-year-old former entrepreneur and newspaper publisher has become a gadfly extraordinaire and the best friend the Tennessee Constitution could ever hope for, as the recent lawsuit demonstrates.
Hooker's lawsuit claims that, because the three retiring judges plan to serve until the conclusion of their term on Aug. 31, 2014, their seats will never be vacant. According to state law and the Tennessee Constitution, Haslam only has the authority to appoint judges in the case of a vacancy on the bench (such as a death, resignation or retirement during the middle of a term). Even though that's the case, Haslam has nonetheless begun the process of filling the seats with judges of his choice to take over after the three judges retire. Since there will be no vacancy, Haslam is violating the law.
To make matters worse, beginning in the early 1970s and continuing into the 1990s, state lawmakers passed a series of misguided and, ultimately, unconstitutional bills that blocked challengers from running against incumbent state judges in elections. The state Constitution's promise of contested elections for Tennessee's 29 state judge seats was bulldozed in favor of a scheme that took authority from voters and placed it in the hands of a special interest-laden state commission that recommended potential judges to the governor, who is now empowered to select judges.
Since the Judicial Nominating Commission has been ordered to close by the end of the month (Tennessee lawmakers recently wised up to the fact that the governor and the commission were taking advantage of the judicial selection process), commissioners are rushing wildly to come up with a slate of as many as 18 potential judges from which Haslam plans to select the three replacement judges.
Hooker hopes his lawsuit will prevent Haslam and the commission from completing their pathetic attempt to cram judges onto the bench in violation of the law and the state Constitution. If he is successful, Hooker believes it will force the discussion about the fact that Article 7, Section 5 of the Tennessee Constitution clearly demands that voters have the right to elect state judges during the August election before each judge's 8-year term expires.
That election should take place on Aug. 7, 2014, allowing voters, instead of the governor and a bogus commission, to determine who will fill the seats of the three retiring judges -- and Tennessee's other state judicial positions.
An injunction to prevent the Judicial Nominating Commission from submitting nominees and to stop the governor from appointing the new judges is an appropriate first step.
The final outcome that Hooker seeks on behalf of all Tennesseans, however, is a recognition by state leaders that the Tennessee Constitution shall not be ignored, circumvented, usurped or marginalized.
For too long, state lawmakers, powerful special interests, invented boards and commissions, and governors, including Haslam, have disregarded the state constitution for their own benefit. Now that alarming practice must stop. When it does -- when the Tennessee Constitution is upheld and obeyed -- the only possible outcome is to return the power to the voters of the state by allowing them to select state judges. Then, and only then, will John Jay Hooker's gallant fight be complete.
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