Tennessee’s method for selecting Supreme Court and other appellate judges is under attack primarily from Republican lawmakers, but if retiring Chief Justice and Republican William M. Barker has his way, the method is not going anywhere.
In an interview with The City Paper, Barker said that the state’s way to pick Supreme Court and intermediate appellate judges — called the Tennessee Plan — is the “best of all methods” that states have found.
The Tennessee Plan requires the governor to appoint justices or intermediate appellate judges from among nominees submitted by a selection commission. Once appointed, the justices or appeals court judges can run for re-election through retention referendums, which require a voter to simply select yes to keep them in office for an eight-year term or no to boot them out.
Despite two Supreme Court rulings, many, including some Republican lawmakers leading efforts to force changes that have endangered the Tennessee Plan, feel the method is unconstitutional and high court justices or Court of Civil and Criminal appeals’ judges should sit for contested elections.
Barker, who is retiring from the Supreme Court in mid-September after 10 years of service (including three as chief justice) and is an acknowledged Republican, splits from some in his party by arguing the Tennessee Plan is constitutional and doesn’t feel changes to how the nominating commission is appointed are necessary.
“We have right now in Tennessee the best judiciary that I can remember in my 40-year legal career,” Barker said. “And it’s because we have had good people chosen.”
Returning to contested elections would be a mistake, Barker says, because judges should represent the constitution and protect the rights of the minority, which can lead to unpopular decisions that go against the will of the majority. Barker pointed to the 1954 desegregation case of Brown vs. Board of Education, which was “terribly unpopular for a lot of folks down South” but nobody “who is a right thinking person” would disagree with it.
In addition, Barker says contested elections cause judges to have to raise large sums of money, referencing $13 million raised and spent in 2006 for an Alabama judicial race.
“Now who gives that kind of money to a judge candidate except those who want to influence decisions,” Barker said. “And I just think that’s unseemly. So even though we’ve got a few warts and perhaps our system needs to be tweaked and perhaps our system can be improved, fundamentally it’s the best system in my view.”
While Barker acknowledges that the Tennessee Plan has a “few warts,” others say it violates the state’s constitution.
Barker flatly rejects the unconstitutionality argument.
The argument that the Tennessee Plan is unconstitutional results from the plain language of the state’s constitution. Article VI, Section 3 and 4 of Tennessee’s Constitution requires the Supreme Court justices and judges for other “inferior courts” be “elected by the qualified voters of the state.”
Those who argue the Tennessee Plan is unconstitutional say the governor appointing a Supreme Court justice and then having that justice stand for a retention referendum as opposed to a contested election is not an election by the state’s voters.
“Serious questions remain whether the Tennessee Plan is consistent with the Tennessee Constitution,” writes Brian T. Fitzpatrick, an assistant professor of law at Vanderbilt University, in a lengthy report on the Tennessee Plan.
One of those questions, Fitzpatrick argues, is his “serious doubts” that the retention referendums satisfy the Tennessee Constitution’s idea of a democratic process since retention votes were unknown when the judicial provision was written into the constitution in the 19th Century.
“As a historical matter, retention referenda were originally designed not to facilitate democratic accountability, but, rather, to insulate judges from such accountability,” Fitzpatrick writes. “It is therefore unsurprising that, in Tennessee and elsewhere, judges who run in a retention referendum are virtually never defeated.”
Of the 146 retention referendums that have occurred under the Tennessee Plan, 145 of the justices or appellate court judges have won the right to remain in their positions, a 99.3 percent success rate. Former Supreme Court Justice Penny White lost her retention election in 1996.
Barker says that those who argue the Tennessee Plan is unconstitutional are “simply wrong,” pointing to 1973 and 1996 Supreme Court decisions that essentially found that a retention election met the constitutional burden of an election by the state’s qualified voters.
“It’s been held twice to be constitutional, and so those who say it’s unconstitutional don’t have any legal authority to support that position,” Barker said.
Removing the ‘warts?’
Although the constitutionality question of the Tennessee Plan still lingers prominently, on a smaller scale, meaningful tweaks in a key cog of the plan — how the nominating panel operates and how they’re appointed — are likely to be heavily discussed in the coming months.
And two of the most widely discussed tweaks to the Tennessee Plan have powerful political support in the form of Gov. Phil Bredesen and Lt. Gov. Ron Ramsey (R-Blountville).
Barker is split in his support of the proposals.
In his administration’s proposed legislation, Bredesen wanted to have all of the meetings of the Judicial Selection Commission open to the public. The Judicial Selection Commission is the nominating panel that selects potential judges or justices for the governor’s consideration.
Currently, the selection commission has a public meeting and then retreats behind closed doors for additional deliberations and interviews with the applicants.
Bredesen’s bill went down in defeat in a House subcommittee as opponents said opening up the process would discourage qualified candidates from applying for open judicial seats.
Barker, who the Judicial Selection Commission interviewed twice privately when he was up for consideration, insists that “nothing sinister occurs back there” but nevertheless thinks the public should be allowed to witness the previously private discussions.
“It’s all very up and up,” Barker said. “But at the same token, the public, when they don’t know what’s going on, thinks the worst and we don’t need them thinking the worst. We need them thinking the best and so I think the open meetings would be a real, definite improvement.”
Special interest controlled system?
Ramsey is also supportive of open meetings for the Judicial Selection Commission, but had his Republican-controlled Senate hold up the renewal of the nominating panel this year as leverage to force changes in how it’s appointed.
The 17-member Judicial Selection Commission went into a one-year wind down period July 1 and will become defunct July 1, 2009 if the Legislature fails to renew its authority.
Currently, Ramsey or House Speaker Jimmy Naifeh (D-Covington), who appoint the panel, must choose among recommendations from five legal interest groups — ranging from the trial lawyers to the district attorneys — for 12 of the 17 positions.
Ramsey, who solely appoints eight members of the panel, wants to be able to select members not recommended by a legal interest group in an effort to get more conservatives on the bench and weed out the “special interests.”
Barker differs with his fellow Republican Ramsey though, saying his recommended changes to how the Judicial Selection Commission is appointed are not necessary.
“I don’t necessarily disagree with that, but I don’t think that that’s a necessary change,” Barker said, saying the legal groups somewhat represent certain segments of society. “It may be alright, but I don’t see a big reason for changing it.”
Sen. Jack Johnson (R-Franklin) disagrees. Johnson, part of a Senate Republican Caucus that held up the renewal of the selection commission in an effort to change it, said the current system where interest group recommendations have to be appointed appears “slimy” and “smacks of being a smoke-filled backroom kind of process.”
Instead, Johnson said Ramsey and Naifeh should have much more latitude on whom they appoint because the two speakers are at least accountable to the voters as opposed to the nominating commission.
“Get the special interests removed because then there’s at least some accountability there because now you have people that are not elected, not accountable to the electorate in any capacity, basically handpicking members of the selection commission,” Johnson said. “And so it’s more or less dominated by these special interests from the legal community.”
Bredesen is OK with Ramsey’s proposed changes, but Naifeh thinks the recommendations from the legal interest groups are helpful.
Barker, a Chattanooga native, does want to ensure that the selection commission consists of people of diverse racial, gender and geographical backgrounds.