Tennessee Plan Puts Politics Before the Constitution

Commentary — By on February 27, 2009 at 9:19 pm

By Drew Johnson

There is a place where a government has denied the constitutionally-protected voting rights of more than 3.3 million registered voters. Qualified candidates who want to run for office are prevented from appearing on the ballot. Judges who determine the fate of thousands are selected by well-connected interest groups in closed door meetings.

This place isn’t Cuba or North Korea. It is Tennessee.

In 1994, Tennesseans’ constitutional right to elect state judges was hijacked when lawmakers decided that partisan politics and special interests should overrule the Tennessee Constitution.

Since 1853, direct elections of state judges have been guaranteed by the Constitution. Article VI, Section 3 of the Tennessee Constitution declares, “The judges of the Supreme Court shall be elected by the qualified voters of the state,” and Article VI, Section 4 states the same with respect to inferior courts. This system of judicial election provided the state’s courts with competent justices for 140 years as Tennessee’s voters utilized their constitutional right and chose qualified judges to serve in the state’s Judicial Branch.

Following the surprise election of Gov. Winfield Dunn—the first Republican elected to the office in 50 years—Democrats began to fear they might lose statewide judicial elections as well. In 1971, Democrats in the state legislature led by then-Senate Speaker John Wilder concocted a plan to rob Tennesseans of their right to vote for judges and authorize the speakers of the Democrat-held state House and Senate to control judicial selection.

The legislation, called the “Tennessee Plan for Judicial Selection and Evaluation,” created a 17-member commission of individuals appointed by the speakers of the House and Senate to evaluate potential Supreme Court and appellate court judges. This Judicial Selection Commission then offers three candidates to the governor who selects one to fill a judicial vacancy.

The scheme was repealed in 1974 due to its unconstitutionality. In 1977, Tennessee voters were asked to amend the Constitution to legalize the Tennessee Plan. Fifty-five percent of Tennesseans voted against the amendment, making it clear they wanted to keep the right to elect judges. The Tennessee Plan was the first proposed constitutional amendment ever voted down by the voters in the then-181 year history of the state.

Despite the public sentiment against the Tennessee Plan and the Plan’s obvious unconstitutionality, the legislature again voted to enact the Plan in 1993, stripping Tennesseans of their right to vote for judges. Never before or since in the history of the state has legislation passed that so blatantly contradicts the Tennessee Constitution.

Under the plan, once a judge is chosen for a court, he or she never has to run against other candidates. At the end of a judge’s eight-year term, he or she is reselected through a retention election system, which allows voters only a yes or no vote on the question of whether to keep the judge in office.

The Tennessee Plan not only contravenes the very document that defines the powers given to government by the people, but, ironically, it also unconstitutionally seats the judges who should serve as the final arbiters of that same Constitution.

With the understanding that it is impossible to make a case for the Tennessee Plan that doesn’t begin by disregarding the Tennessee Constitution, it is fair to ask: “Is the Tennessee Plan a good method of judicial selection?” The answer is: “Not at all.”

Advocates of the Tennessee Plan claim that ignoring the State Constitution is justified because it “takes politics out of the courts.” Tennessee Plan supporters allege that by denying Tennesseans’ right to vote for judges, they are removing the influence of campaign contributions and powerful special interests such as the Trial Lawyers Association and the Association of Criminal Defense Lawyers. In fact, nothing is further from the truth.

Because the Speakers of the House and Senate select the members of the Commission, the Tennessee Plan actually makes the judicial selection system more susceptible to the effects of campaign contributions and favoritism.

On August 12, 2004, Nashville attorney Bill Farmer donated $1,000 to the Speaker’s Fund, House Speaker Jimmy Naifeh’s personal political action committee. Less than a month later, Naifeh appointed Farmer to serve on the Judicial Selection Commission.

Former Senate Speaker John Wilder appointed John Lyell to the Commission in 2001. Lyell donated $2,000 to Wilder in the two-year period before his appointment. Lyell is also one of the state’s most influential lobbyists. He has since been term-limited off the Commission, but it would be hard to imagine that the interests of Lyell’s clients didn’t influence his judicial recommendations.

To make matters worse, the Judicial Selection Commission is largely comprised of representatives of the same special interest groups that defenders of the Tennessee Plan claim would have undue influence on elections.

By law, the Commission must be stacked with attorneys representing the Tennessee Trial Lawyers Association, the Tennessee Association of Criminal Defense Lawyers, the District Attorneys General Conference and the Bar Association. By the time the Commission is filled with attorneys representing the required special interests, there is room for only three non-attorneys on the board.

In order to remedy the current unconstitutionality of the process, I filed suit in federal court to recover Tennesseans’ right to vote. The case—known as Johnson v. Bredesen—is currently winding through U.S. District Court and may well find its way to the U.S. Supreme Court.

In addition, the state’s Judicial Selection Commission is set to sunset this year. This means if the state legislature does not vote to renew the Commission, it will expire. Since the Tennessee Plan is inoperable without the Commission, this would almost certainly mean the end of Tennessee’s unconstitutional judicial selection scheme and a return to the state’s constitutionally-provided system of judicial elections.

At the beginning of every session of the Tennessee General Assembly, state senators and representatives swear to uphold the state and federal constitutions. As long as the unconstitutional Tennessee Plan exists, that oath is one promise that every member of the state legislature will break.

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