Merit Plan or Modified Federal Plan? What’ll it be?

Know the difference between a “merit plan” and a “modified federal plan”? You ought to. It has everything to do with how Tennessee Supreme Court justices will be selected in our state.

The Tennessee constitution says that judges for the appellate courts and the Supreme Court “shall be elected by the qualified voters of the state.” For years we had elections, but beginning in 1995, an appointed panel of citizens, mostly lawyers, recommends three candidates for each position and the Governor chooses one of the candidates. At the next state-wide election following appointment, the judge runs unopposed in an “election” in which the people can only vote to either “retain” or “replace” the judge.  All but one judge has ever been “defeated.” Most of the time, they are retained. This process does not square with the state constitution and, if we’re not going to have elections, the constitution should be changed.

There is a move underway right now to put an amendment on the ballot so the voters can choose between elections and some type of appointment process.

Two types of amendments have emerged: the “merit plan” and the “modified federal plan”. A “merit” plan is one that sets up an appointed commission to evaluate judicial candidates and determine whether they are even “qualified” to be appointed by the Governor. In other words, unelected people control who can be a judge on our highest court.

The “modified federal plan”, on the other hand, would create a system similar to that used to appoint judges to federal courts, including the Supreme Court. The Governor would nominate judges and the state legislature would approve or reject the nominees. The partisan bickering we’ve had at the federal level has been eliminated by providing that a judge is deemed confirmed unless rejected by the legislature in 60 days.

Various resolutions to amend the constitution to reform the judicial selection process have been proposed in the Tennessee General Assembly. SJR 183/HJR 830 propose the merit plan approach, while SJR 710/HJR 753 propose the modified federal plan.

If this is still confusing to you, don’t be surprised. This is issue is very important to the future of our state, so stay tuned. We’ll do our best to keep you informed as the process moves forward.