The campaign for Amendment 2 to the Tennessee constitution kicked off this week with a host of dignitaries assembling for a press conference, including our current governor and his predecessor. The amendment is aptly named because it is of secondary importance among the amendments that will be on the ballot.
What Is Amendment 2?
Amendment 2 would put into the constitution a process for the “election” of judges to the Tennessee Supreme Court that is somewhat of an improvement over the process we’ve been using. The current process allows a governor to appoint a judge to the Supreme Court who, a year or so later, gets to run unopposed in a retention election.
It’s a process only silver-tongue lawyers could think satisfies the requirement that’s been in our constitution since 1870 that says judges “shall be elected by the qualified voters of the state.” Try to imagine people in 1870 thinking that appointment by the governor to a position that no one could run for was an “election.” Never mind; you won’t live that long, because until 50 years or so ago, power-protecting politicians had not yet dreamed up retention elections.
The current process is an improvement only in that it injects some accountability into the appointment process—the members of the legislature will have the power to reject a governor’s nominee, if they want to exercise it. Of course, legislators will have to want to reject the nominee badly enough to buck any key legislative leaders who may not want the governor of their party to be “embarrassed” by a nominee’s rejection.
Why Amendment 2 Is Aptly Named
The need for at least some increased measure of judicial accountability on our state Supreme Court (if we’re not going to have direct elections) is demonstrated by the very reason Amendment 1 is on the ballot.
Amendment 1 is needed because in the late 1990s Planned Parenthood began to look for states where it might find liberal judges friendly enough to “find” a “right to abortion” in a state constitution. It was a nice way for Planned Parenthood to “hedge its bets” in case Roe v. Wade was ever reversed for the constitutional malpractice it was.
Tennessee was a nice target because our judges were appointed, not elected by the people. Planned Parenthood knew the people couldn’t very easily remove from the bench activist judges against whom no one could run for election.
Consequently, Planned Parenthood sued to have several of our key abortion laws declared unconstitutional under our state constitution. And in 2000, Tennessee’s Supreme Court obliged them. They “found” a “right to abortion in Tennessee’s constitution.
As a result of that decision, Tennessee is now the only state in the entire Southeast without either an abortion-specific informed consent law or a waiting period law. Not surprisingly, the percentage of abortions Tennessee performs on out-of-state women is now the third highest in the nation, according to the latest report by the Center for Disease Control.
That’s bad enough, but a federal court has even held that our regulations governing abortion clinics operated by abortion doctors are unconstitutional. Think about convicted murderer Dr. Kermit Gosnell, the abortionist from Philadelphia, and then think about his type of “clinic” not even being regulated in Tennessee.
The Supremacy of Amendment 1
So, Amendment 2 is important, but if it fails, we will not lack for judges, and at least someone will be accountable for who is on that court. Judges can’t just spontaneously self-originate on the court, modern scientific theories of origins aside.
But if Amendment 1 fails, women will be harmed because they will not get the information they need before they make a life-altering decision. Clinics like Dr. Gosnell’s will continue unregulated and uninspected, and unborn human beings will continue to die in higher numbers.
The primacy of the issue of life vis-à-vis judges is demonstrated by the German judges who approved Hitler’s atrocities. The judges followed the letter of the law, but they could only do so without guilty conscious because they had previously decided that some human beings didn’t deserve to live.
So, let’s hope the elected officials who are embracing Amendment 2 will as openly and enthusiastically embrace that amendment which is of primary importance in November, the aptly named Amendment 1. And in that regard, Lt. Gov. Ramsey, thank you for being the first to do so.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.