State Constitution Should Reign Supreme When Seating Justices
By Drew Johnson By the time most Tennesseans graduate 7th grade, the importance of the State Constitution is clear. It outlines the fundamental principles that determine how our state is governed. Like the U.S. Constitution, Tennessee’s Constitution protects our freedoms and ensures our rights. Each state judge and member of the Tennessee General Assembly takes an oath to uphold and protect it. For over twelve years, however, the General Assembly has disregarded the State Constitution and robbed Tennesseans of one of the most important rights guaranteed by the document: the right to elect members of the Tennessee Supreme Court. 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.” Though this system of judicial election provided the state’s courts with competent, qualified justices for 140 years, state legislators stripped Tennessee’s voters of their Constitutionally protected right to vote for members of the Supreme Court in 1993. The legislation, called the “Tennessee Plan for Judicial Selection and Evaluation,” created a 17-member commission of individuals appointed by the Speakers of the Tennessee House and Senate to evaluate potential Supreme Court candidates. This Judicial Selection Commission offers a slate of three finalists to the Governor who picks one to fill a vacant seat on the State Supreme Court. Once a Justice is chosen for the Court, he or she is never actually runs against other candidates. At the end of a Justice’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. Voters are offered no alternative candidates, denying them a legitimate voice in the matter of who serves on the Tennessee Supreme Court. The Tennessee Plan not only discards 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. Advocates of the Tennessee Plan claim that ignoring the State Constitution is justified because it “takes politics out of the courts.” 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 prone to the effects of campaign contributions and favoritism. The Judicial Selection Commission has become a haven for nepotism and political paybacks. For example, On August 12, 2004, Nashville attorney William H. 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 Judicial Selection Commission in 2005. Lyell donated $2,000 to Wilder in the two-year period before his appointment. Moreover, Lyell is one of the state’s most influential lobbyists, representing AFLAC, the Tennessee Health Care Association and Spectrum Health Systems. It’s hard to imagine that Lyell’s interest in stacking the Court with Justices compassionate towards his clients doesn’t influence his judicial recommendations. Most importantly, even if the Tennessee Plan were a better method of choosing justices than direct election, it is still unconstitutional. Nothing, short of a Constitutional amendment, can change that. In an attempt to end this attack on the Tennessee Constitution, I recently filed suit in a federal district court on the grounds that the Tennessee Plan violates the due process and equal protection clause of the 14th Amendment to the U.S. Constitution by denying voting rights granted under the State Constitution. As a voter and the president of the Tennessee Center for Policy Research, I am proud to bring this suit on behalf of all voters in Tennessee. A victory would return the Constitutional right to vote for State Supreme Court Justices to Tennesseans—and prove a triumph for constitutional government in Tennessee.