Resurrecting the Tennessee Constitution

In my recent Independence Day commentary, we looked at the death a week ago of the United States Constitution and how “we the people” should respond.  Today we look at the issue at the state level.  Last week, the last hurdle to resurrect our state constitution was removed.  The question is how will Tennesseans finish the potential life-giving process. 

The potential to resurrect our state constitution from the throes of tyrannical complicity between the judiciary and some of our state legislators occurred last week.  That potential came with the death of the Judicial Nominating Commission.

That commission, established by the legislature in 1994, allows an appointed group of individuals to nominate judges for service on our state Supreme Court (and Court of Appeals) who are then appointed by the Governor.

This might not seem too bad to some but for the fact our state constitution clearly says that the “judges of the Supreme Court shall be elected by the qualified voters of the state.”

Unfortunately, several years ago, a specially appointed panel of state supreme court justices decided to infuse a little “life” into that provision, and in doing so essentially killed any real potential for the people of Tennessee to hold the members of the state Supreme Court accountable for their interpretations of the state constitution.

The election requirement previously quoted was written in 1870.  At the time, no one had ever heard of a process whereby no one could run for office, had to be nominated and appointed, and then years later run unopposed in a retention election.  Nevertheless, the special panel of justices breathed “life” into the word “elect,” holding that it included an “appointment and retention election process.”

Ironically, in doing so, the Supreme Court essentially killed the state constitution because the Court was now freed to re-write the state constitution in the future in any way it wanted.  They were free to do as they wished because those who nominated them in the first place were not accountable to anyone for whom they nominated and because once appointed, no one could run against them.  Only once since this appointment process was set up has any state judge been defeated in a later retention election!

But last week the Judicial Nominating Commission dissolved because the legislature wisely refused to renew its existence.  Instead, the legislature voted to allow the people to vote (in November, 2014) on a constitutional amendment regarding the Supreme Court that is a modified federal plan.

Under the amendment, when there is a vacancy in the state Supreme Court, the Governor, like the President under the federal plan, will nominate someone to fill the position.  Then the members of the State House and Senate, who are accountable to the people, will have to decide whether to reject that nominee.  Unlike the federal plan, the state legislature will only have 60 days in which to decide whether to reject a nominee.  If the nominee is not rejected, then he or she will begin to serve on the Court, and thereafter only be subject to retention elections.

While some object to this amendment and some even object to putting the amendment on the ballot, those who support judicial accountability should see the wisdom in this process that I think is often overlooked.  Finally, the people of Tennessee will have a chance to breathe life back into their constitution in one of two ways.

First, the people can adopt the amendment, if they like it.  In doing so they will have decided for themselves if they want something other than a true judicial election.  But they will have at least injected some accountability into the process by means of holding their elected officials accountable for who serves on the Court.

Second, the people can reject the amendment.  If the amendment is rejected in 2014, then they can go back to their legislators in 2015 and insist that they not re-enact the Judicial Nominating Commission but instead follow the plain language of the state constitution by reinstituting judicial elections.

Regardless of what happens, the people of Tennessee now have an opportunity to decide how to provide the accountability needed to minimize judicial tyranny in our state.  Whatever way they decide to go will be an improvement over the now-deceased Judicial Nominating Commission.   And our state constitution will have been given new life.