- How are appellate judges/Supreme Court Judges elected today?
The current method for selecting appellate judges is called “The Tennessee Plan.” Under the Plan, a 17-member commission handpicks three candidates for each vacancy on the state’s appellate courts, including the Tennessee Supreme Court. The Governor must choose one of the three candidates or ask the commission to provide a new list. Judges selected by the Governor are never subject to a contested election. Instead, those who are appointed by the Governor face an uncontested retention referenda at the next state-wide election. If retained, the appointed judges are then only subject to an uncontested retention referenda only once every 8 years. Only one judge subject to this process has ever not been retained. Prior to 1971 (and for a period since then), appellate judges were elected in contested elections such as are now used for local trial judges.
- Is the plan constitutional?
Tennessee Constitution states: “The judges of the Supreme Court shall be elected by the qualified voters of the state … The Judges of the Circuit and Chancery Courts, and of other Inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned” (Tenn. Const. art. VI, §§ 3, 4). A special panel of judges was appointed by a former Governor to decide if gubernatorial appointment and subsequent uncontested retention referenda met this constitutional requirement, and the appointed judges said it was permissible. Today, only Tennessee trial court judges are subject to the type of election in which a person, without approval of any commission or other elected official, can collect the signatures needed to “run for office” and be elected.
- Is the public involved in the nomination of judges?
No. The judicial selection commission is comprised of a small group of just 17 persons picked by the Speakers of the state House and Senate. Ten of the 17 members must be lawyers. In addition, the votes of the commission members recommending nominees to the Governor for appointment are anonymous.
- Has the plan ever been submitted to the people?
Tennessee voters explicitly rejected an “appointment and uncontested retention referenda” plan when it was one of 13 constitutional amendments placed before them in 1977. It was the only amendment to be rejected by the voters that year.
- Has the plan achieved the objective of removing politics from the judicial process?
When originally adopted in 1971, the Tennessee Plan was intended to remove politics from the judicial selection process. However, former Governor Phil Bredesen said in an article published on January 14, 2008, in the Chattanooga Times Free Press, that the process was “vastly too political.” Whether this process has eliminated politics or simply changed the focus of the politics from voters to politicians and commission members is for each voter to decide.
- What is the status?
The 107th General Assembly adopted Senate Joint Resolution 710, a proposed amendment to the state constitution that deals with the process by which members of the appellate and Supreme Court come to serve on those courts. The proposed amendment in SJR 710, if approved by the 108th General Assembly, would then be placed on the ballot in 2014. That proposed amendment to the state constitution provides that the Governor shall nominate a person to the appellate court and Supreme Court and the nominee must be “confirmed by the legislature.” The statutory structure by which confirmation is conducted will established by future General Assemblies if the people ratify the amendment. But the proposed amendment established a certain set period of time in which a nominee must be rejected or else the nominee will be deemed confirmed. The full text of the amendment can be found at this link.
- Could we have contested elections for the state’s Supreme Court?
Yes, there could be under the current language of the state constitution. However, the current statutory Tennessee Plan would have to be repealed by a future legislature and a process for contested elections established. However, if SJR 710 is ratified by vote of the people, then contested elections for the state’s Supreme Court judges would be unconstitutional.