Constitutional Crisis

Our state’s elected leaders are playing a game of constitutional roulette. And if they lose, Tennessee will face a constitutional crisis of tsunami proportions. I say that because of the United States Supreme Court’s decision regarding the unconstitutionality of the President’s recess appointments to the National Labor Relations Board.

The Court affirmed the decision of the Court of Appeals in which the following statement was made: “The Board had no quorum, and its order is void.” The Board, of course, is the National Labor Relations Board that had issued an order against a business who appealed the validity of that order.

The appellate court’s statement meant that when the Board met subsequent to those illegal appointments, those illegally appointed members were effectively “not there” as a matter of law. Of course, not being there, the Board lacked a quorum at its meetings. Lacking a quorum, all the Board’s orders and decisions were void. The logic is flawless.

Setting Up the Game

With that background, here is the game of constitutional roulette we’re playing in Tennessee. The graphics in this video explain visually what follows.

Earlier this year, Tennessee trial judge Hamilton “Kip” Gayden ruled that the composition of the Judicial Performance Evaluation Commission (Commission) was invalid under state law. State law requires that the panel’s composition “approximate the population of the state with respect to race and gender.”

Tennessee’s population is roughly 52 percent women and 48 percent men, yet the Commission is made up of two women and seven men, meaning women make up only about 22 percent of the panel. The failure of the Commission to even come close to meeting the statutory requirements meant that the Commission was invalid.

If Judge Gayden’s ruling stands, then the three justices of the state Supreme Court standing for retention election in August should not be on the ballot (as well as all the court of appeals judges who were also recommended). Under state law, a sitting justice can only be on a retention ballot if the Commission approves his or her past performance. So, if the evaluation that put them on the ballot was made by an invalid Commission, then it would logically follow that the justices did not meet the requirements to be on a retention ballot.

The Game Will Be Played in August

Next, let’s assume those justices are retained when we go to the polls in August. If we follow the reasoning just approved by the Supreme Court to the effect that rulings by invalidly seated governmental bodies are void, then every judgment these justices make after being retained would have to be invalid. That is so because three of the five justices would not, as a matter of law, have been there.

Here’s the nightmare. After their re-election, assuming they are re-elected, these justices will begin to rule on cases that are already pending before them. But assume some later time, maybe a year or two later, a lawyer who wants to preserve a favorable trial ruling argues that his losing opponent has no court to appeal to.  And why?  Because the majority of the justices aren’t validly there.

At that point, a special panel of judges will be appointed and, if they are honest, they will agree with Judge Gayden. If that happens, then every ruling by our Supreme Court (and courts of appeals) issued prior to then should be as invalid as the rulings by the improperly seated National Labor Relations Board. That is a nightmare.

Is There A Way Out?

Why our political leaders made no effort to fix this potential problem and gambled on no court ever upholding Judge Gayden’s ruling isn’t relevant at this point. The point is that re-electing these judges is to make the same gamble.

So, when you go to vote for these Supreme Court justices (and the appellate judges), just remember that you’ll also be deciding whether to join the game of constitutional roulette.  The decision to play or not play the game is yours.

Watch David Fowler explain the game of constitutional roulette in this YouTube video

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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