Fixing the Constitution: Is There a Better Approach to Selecting Judges?

Fixing the Constitution: Is There a Better Approach to Selecting Judges?

Over the last two weeks there has been a lot of news coverage regarding Tennessee’s judiciary and, in particular, the process by which people come to serve on our state Supreme Court.  It is a very critical issue.  Please understand this: essentially three Tennesseans can “interpret” your constitutional rights into or out of existence by the stroke of their pen.  It’s a potentiality that affects all of us, liberals and conservatives alike.  It’s an issue about which we all must be concerned.

Tennessee Supreme Court Building

The Tennessee Constitution clearly states that the “judges of the Supreme Court shall be elected by the qualified voters of the state.”  Lt. Governor and Senate Speaker Ron Ramsey has consistently stated that the current process by which Justices come to serve on that court violates the plain language of the constitution.  Conservatives have long clamored that we need to either elect our Supreme Court justices like the plain language of the constitution says or amend the constitution.

Thankfully, the Lt. Governor seems to have prevailed upon the Governor and House Speaker Beth Harwell to support an effort to amend the constitution, to “fix” it.  But will the “fix” they eventually get behind actually fix the real problem, namely, the lack of accountability in the judiciary?  I don’t think there are really that many people who want to have contested, statewide elections, even among those who are conservative on most all other issues.  But I also think a majority, at least of those who share the political affiliation of the Governor and the two Speakers, believe there needs to be more accountability than the current process provides.

Currently, the two Speakers appoint people to a panel who review applications for open positions on the Supreme Court.  This “nominating commission” recommends three names to the Governor and then the Governor picks one of them.  The person the Governor picks stands for a yes-no retention election at the next general election which may not be until almost two years later.  This process provides virtually no accountability and no public input.

Consider who’s accountable.

Say voters don’t like the decisions some Supreme Court Justice appointed by the Governor is issuing.  Who can the voters hold accountable?  What recourse do they have.

Hold the Governor accountable?  No.  Not really.  Remember, he can only appoint someone from the list of three nominees he was given and maybe this Justice was the best of a bad lot.  Easy for the Governor to pass the buck.

Hold the members of the nominating commission accountable?  Tough luck.  They are all appointed by the Speakers.  No one gets to “vote them out of office.”

Well, then how about holding the Speakers accountable for their appointments?  Out of luck again unless you happen to live in the district represented by one of the Speakers.  Why would a Speaker from Davidson County get too worried about what someone from Shelby County or Grundy County thinks.

“But there is a retention election,” you say.  Yeah.  Right.  With a Herculean effort like the one in Iowa last year and a bad enough judge, the people might just vote the person off the court.  Out of dozens of judges who have been on the ballot in the last fifteen years or so that has happened … once.  But after all that effort to get someone kicked off, who is to say that the folks on the nominating committee who gave us the bad judge we just voted out of office won’t give us another one of the same philosophy. After all, the same unaccountable people get to do the nominating for the replacement.

Some say they see these problems, but believe direct contested elections are worse because they inject politics into the process.  Elections will cost millions (which just goes to show how powerful these judges are).  Money will influence judges.

Are there only two bad choices?

Okay.  Fair enough.  Assume all of that is true.  Leaving aside for the moment the question of whether the current process is constitutional, is our only choice between having expensive, corrupting contested elections and having virtually no judicial accountability?  I don’t think it has to be that way.

In considering our options, we have to start with all of us facing a reality: you can’t get someone into public office in a position to govern other people without there being some element of politics.  Impossible.  So, the only questions are:

  • can the politics be minimized,
  • will the process be as open to public scrutiny and public input as possible, and
  • how much accountability will there be for those who put that person into office?

Is there a third way?

For what it’s worth, here are my two cents.  I hope there will be some who will give it serious consideration.

Propose a constitutional amendment that would do the following and during the current session pass the legislation implementing the amendment.  But here’s a twist: put the effective date of the new judicial process off until after the amendment is voted on by the public.  Having the law in place for people to study before they vote on the amendment will help voters make a more informed decision.  They will know what the legal language of the amendment really means.

As for the amendment itself, it should:

1.  Give the Governor free reign to nominate anyone he wants.  That way there is an opportunity for real accountability for who the Governor puts forward.  No passing the buck to some unelected members of a nominating committee.  Have an appointed committee, if you want, first evaluate the candidate for legal competency and give their evaluation to the Governor and the legislature.

2.  Require the legislature to confirm the Governor’s nominee.  Once the Governor has nominated someone then the legislature, both the House and the Senate, would have to confirm the Governor’s nominee.  This is a process already used for other gubernatorial appointments to the state Board of Education and the University of Tennessee’s board of trustees.  And it gives real opportunity for public input and accountability.

Citizens can share their thoughts on a nominee with people they can hold accountable, namely, their own Senator and Representative.  And, yes, it involves politics, but so does the current process.  I know personally that those on the current judicial nominating commission are lobbied hard to nominate particular applicants.  But at least the politics in this process will allow real input by citizens and give them someone to hold accountable.

3.  Have a retention election.  As under the current system, any judge confirmed would stand for a retention election at the next general election after his or her appointment.  Still not a very meaningful election, but if the judge is bad enough, people may rally to kick the judge off the court.  And even if not successful, when the judge’s eight year term expires and the judge has to be re-appointed, the people will have a chance to exhort their Governor and elected representatives not to put that person back on the court again.

Could this amendment pass on the ballot?  Who knows.  But it for sure gives the people more input and allows for more judicial accountability than an amendment that merely enshrines the current process.  That amendment won’t pass.  It didn’t pass back in the 70’s when it was on the ballot the last time.

This proposal has a better chance of being approved by the people than an amendment that enshrines the current process.  The question is whether it can be approved by the legislature if the Governor and Speakers don’t support it.