The Current Plan on Judges is Ridiculous

May 13, 2009 9:06PM

By Justin Owen, J.D. When it comes to democracy, I think it’s time for a change.  Average Tennesseans can’t be trusted to make sophisticated decisions like picking their representation in the state legislature.  To clear things up, I propose a Legislative Merit Selection Act. Under the Act, the General Assembly bypasses the state constitution and creates a “Legislative Selection Commission” made up of lobbyists.  This unelected and unaccountable committee will nominate three candidates for each House and Senate seat. The governor will then select one person from the slate of candidates to represent each district. Instead of holding contested elections, voters will only be asked whether their legislators should keep their jobs in a simple “yes/no” retention election held every few years. Sound ridiculous?  Well, that’s exactly how we “elect” our judges. For more than 120 years, state judges were elected by voters in contested elections.  That’s because the Tennessee Constitution explicitly demands that judges be “elected by the qualified voters” of this state. That ended in the 1970s when the state legislature, for political reasons, decided it would override the Tennessee Constitution. Legislators vested power to select judges in the governor, who now chooses from a slate of candidates nominated by a committee of mostly lawyers, many of whom ultimately appear before those same judges.  This system has become known as the “Tennessee Plan.” But more is at stake than the potential problem of placing bad judges on the bench.  The current “Tennessee Plan” runs roughshod over our constitutional liberties. Individual constitutional rights are often the only defense against a tyrannical majority, and ignoring some language in the constitution cheapens the entire document. In a world where the plain language of the constitution means nothing, citizens have everything to lose. If the General Assembly can take away the people’s right to vote for judges without their consent, what other rights can it steal away? Maybe the General Assembly will someday do away with our right to free speech, religion, or to be tried by a jury of our peers when it becomes politically expedient to do so. While it is important to debate whether direct elections, “merit selection” or some other system results in the most qualified judges, this debate is premature.  Until the people of this state decide to amend the constitution, they have every right to elect judges through contested elections. If members of the General Assembly continue to deprive them of this right, the people might just exercise one constitutional right that hasn’t been taken away: to vote those legislators out of office. Justin Owen, J.D., is the director of legal policy at the Tennessee Center for Policy Research, an independent, nonprofit and nonpartisan research organization committed to achieving a freer, more prosperous Tennessee through the ideas of liberty