Judging the Upcoming Elections

Accountability is the “in” thing during this election season, but the Judiciary is one branch of Tennessee government that is almost completely unaccountable to anyone.

The economy. Education. Health care. Three issues that every candidate of every party says they are going to “fix” if elected. But judging from what I see, candidates aren’t talking about another issue they can fix, and for sure some of them don’t want to talk about it. And most Tennesseans don’t even know about it.

What I’m talking about is the Tennessee Judiciary. Yes, we need to hold our legislators accountable. Accountability is the “in” thing during this election season, but the Judiciary is one branch of Tennessee government that is almost completely unaccountable to anyone.

In Tennessee, Judges Are Not Really Elected

Most Tennesseans know that the judges on our Tennessee Courts of Appeal and Supreme Court aren’t really elected. Even though our state Constitution says the “Judges of the Supreme Court shall be elected by the qualified voters of the state,” our politicians have said an “election” means an appointed panel of people who make recommendations for Supreme Court justices to the Governor who then appoints one of the persons recommended. Sure doesn’t sound like an election to me. That may also help explain why, when you see judges on the ballot, you know absolutely nothing about them.

Anyway, some legislators (the ones who don’t want to talk about this issue) fall back on the fact that there is a yes-no “retention election” a year or so after a Justice is appointed to the Court. If you believe that back in 1870 when our state Constitution was adopted that the people thought this was an “election,” then you’ll also believe that politicians can fix everything that ails America. No one had ever heard of a retention election at the time. It couldn’t have been what they meant. But I digress.

Those legislators who hold to “appointment and retention” as a form of “election,” will tell you that the state’s Supreme Court said it was OK. As Gomer Pyle would have said, “Surprise. Surprise. Surprise.” Can you imagine we’d get such a decision? Why, I’m sure a fox would also tell us that one of those invisible fences we use for our dogs will keep him out of the henhouse, too.

But that court decision isn’t really that important. Here’s why. Just because the Supreme Court has said its members don’t really have to be elected doesn’t mean that legislators have to have appointment and retention elections. There is no Supreme Court decision requiring appointment and retention elections or forbidding real elections. In other words, there is nothing that prevents legislators from reading the Constitution themselves and saying, “No thanks. The Constitution calls for an election, and that’s what I’m gong to vote for—a real election process.”

Why Can’t We Elect Our Judges?

So, why doesn’t a bill calling for a real election ever get to the floor of the House and Senate for an up or down vote? Why doesn’t a proposed constitutional amendment clarifying what the Constitution means ever get to the floor for an up or down vote? Because any such legislation would have to come through the House and Senate Judiciary Committees, that’s why. And those committees have a number of lawyers on them, and those lawyers are hesitant to raise the ire of the judges before whom they practice.

However, I don’t know that I blame the lawyers on the committee, particularly since it came out in the last week that the entity of state government that investigates unethical and inappropriate conduct by judges is as dysfunctional and unaccountable as the U.S. Congress (actually, we might just be able to hold our Congressmen accountable, but not our judges). That entity is called the Court of the Judiciary, a group of mostly judges who decide if judges have done anything wrong. Is it just me, or is it beginning to look like an absence of judicial accountability at any level yet?

In a hearing before the Senate Judiciary Committee, lawyers and litigants went on for seven hours recounting horror stories about bias and inappropriate conduct by judges that were given short shrift by the Court of the Judiciary. And everything the Court of the Judiciary does is in secret—off the record. Worse yet, some lawyers testified that lawyers were afraid to file a complaint about a judge because nothing would be done and the judge would then take it out on them and their clients for having complained. Perhaps that helps explain why lawyers on the House and Senate Judiciary committees don’t want to vote for a bill that judges won’t like.

Folks, this is a sad situation for the already tottering notion of democratic self-government. (I know we’re not a democracy, but the people do vote for those who will govern them, so please no e-mails on a democracy vs. republic. We’re a republic.)

Unelected Judges Can Produce Dangerous Consequences

We already have a state Supreme Court that has created from thin air a right to abortion in our state Constitution. How nice that this pro-life state is one of only 16 states in the nation with a so-called “right to abortion” in their state constitution. And you never got a chance to vote on whether abortion should be a state constitutional right. No democratic form of self-governing there.

The nation is now seeing in Iowa and in California the consequences of an unaccountable judiciary. Iowa’s Supreme Court, “elected” in much the same way our Supreme Court is “elected,” gave their state homosexual marriage as a constitutional right. What might our state Supreme Court give Tennessee next?

I close with saying that in 2008 the state House and Senate did get a chance to vote on whether to have real elections or to continue with the current appointment and retention election process. But most folks don’t know that because the vote wasn’t on a judicial elections bill that you could go research and find. Rather, supporters of constitutionally required “real” elections tried to put an amendment onto another bill. But the amendment was voted down.

You probably never even knew there had been a vote on judicial elections for which you can hold an incumbent accountable.

And what you don’t know can hurt you.