Tuesday, May 20, 2008


Tennessee Senate to Decide Today on Allowing Tennesseans to Vote for Appellate Judges?

Terry Frank has been all over this issue, and it is an important one.

First, some background for the uninitiated - despite what it says in the Tennessee Constitution (as pointed out by Rep. Stacey Campfield), we don't really vote on our appellate judges here in Tennessee. When I refer to appellate judges, I am referring to judges who sit on the Tennessee Court of Appeals, the Tennessee Court of Criminal Appeals, and the Tennessee Supreme Court. These judges are appointed by our governor after he receives a panel of three candidates from the Tennessee Judicial Selection Commission. Every 8 years we are allowed to cast a retention vote on these judges (only former Supreme Court Justice Penny White has ever been voted off the bench through one of these retention votes), but that's not exactly the same as an actual election, now is it?

This current method of judicial selection - often referred to as the "Tennessee Plan" - sunsets this year. After a year of winding down, we will most likely see some sort of popular election for appellate court judges here in Tennessee absent some sort of rescue operation for the Tennessee Plan.

And such an effort has been ongoing for several months now. A current judge on the Tennessee Court of Criminal Appeals gave a heartfelt plea to a local bar a few months back, trying to drum up support for saving the Tennessee Plan. This particular judge, whom I have practiced before on many an occasion, was elevated to his current position by Governor Bredesen and has been an excellent judge for many years. However, he is probably a bit worried that a Democrat like himself would have little chance of winning popular election in East Tennessee - an election that he would have to take part in to keep his current job.

Liberal lawyers like Knoxville's Wanda Sobieski and members of the Tennessee Trial Lawyers Association (I refuse to address them by their new, more politically correct name because I've always known them as the TTLA) have also been trying to drum up support from their colleagues, asking that State Senators be contacted. (I mention Sobieski because I received an e-mail from her earlier today, but others have also been active on this front.) Others, like Kay Brooks, have been lobbying to let the citizens of Tennessee vote on their judiciary.

As a practical matter, I have been of two-minds on the sunsetting of the "Tennessee Plan." (As an ideological matter, I am for letting the people vote on all things that effect them at all times, not just when it fits my cause (compare here and here from the same author, for a counterexample).) Practically, though, having statewide elections with the mind-boggling fundraising needed - as they do in Texas, Illinois, and Alabama - raises ethical issues. However, at least that is aboveboard, for the public to view. Appointed judges make for backroom deals and the dirty side of politics. That certainly isn't an ideal way of going about things.

The practical issues aside, my ideology wins out on this one. The Tennessee Plan should go. Instrumental in my understanding and ultimate conclusion on this matter was a report provided to me by The Federalist Society. That report, authored by Vanderbilt Law Professor Brian Fitzpatrick, is an excellent resource for anyone with questions as to why the Tennessee Plan should go the way of the dodo.

As of 2:43 P.M. today, I was informed by staff for Senator Jamie Woodson that the matter had not made it to the floor of the Senate, as planned by former Lt. Governor Wilder. (The videos of Wilder begging to support for the Tennessee Plan are sad - how can this man manage to gain re-election?!?!) In fact, I was told that it was doubtful that the matter would be brought to the floor prior to adjournment. This would certainly be surprising - and welcome.

There's my two-cents...

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