How Our Judges Are Selected and Why It Matters -February 3, 2012
by LWVN SECRETARY DIANE DIIANNI
The League of Women Voters of Nashville will host Guilford ("Gif") F. Thornton, Jr., a Nashville-based attorney with Adams and Reese, as guest speaker for its February luncheon focusing on the importance of judicial selection. Thornton is legislative counsel to businesses, trade associations, and governmental entities with interests before the Tennessee General Assembly and serves on the board of the Tennessee Business Roundtable. He formerly served on Vanderbilt University's board of trust and as board president of the legal aid society of Middle Tennessee. In addition, he is currently chief lobbyist for the Tennessee Bar Association on the issue of merit-based judicial selection. Thornton will discuss recent and pending legislative developments in this area and why preserving merit-based selection is important to ensuring a fair, competent, and impartial judicial system in Tennessee.
Judicial selection is a complex process, so let's briefly review the current Tennessee Plan for merit selection, performance evaluation, and retention for appellate judges. When a vacancy on an appellate court including the Supreme Court occurs in Tennessee, a judicial nominating commission selects a panel of nominees for consideration by the Governor who then selects a candidate for appointment. Once appointed, the judge holds office until the next general election, at which time his or her name appears on the ballot to determine whether he or she will be "replaced" or "retained." This is known as a retention election. If the nominee is rejected by the qualified voters of the state, the nominating process starts over. If the nominee is accepted, the judge serves the remainder of an eight (8) year term. Then, before the end of his or her term, a 9-member judicial performance evaluation commission publishes an evaluation of the judge. If the evaluation commission recommends that the public retain the judge, the judge runs in another retention election. In the event that the evaluation commission does not recommend retention, then general election laws apply and the judge must run in a contested, partisan election. The Tennessee Plan was modified by the General Assembly in 2009.
During the past several years, there have been legislative efforts to end merit-based selection and retention of appellate judges in Tennessee in favor of elections (partisan or nonpartisan) of all judges. Most recently, the Tennessee Plan was to sunset in June 2007, but was extended for one year until June 2008. Because no legislative action was taken by June 2008, the committees that selected judicial nominees and evaluated appellate judges expired under the sunset provision and operated in a statutory one year wind-down period until June 2009.
During the 2009 legislative session, the LWVTN's lobbyist and Action Committee, and several other organizations, advocated forcefully for the preservation of a merit-based selection and retention system for appellate judges, and with only two weeks remaining, the merit selection, evaluation, and
retention system was preserved with modifications relating to such matters as the selection and composition of the nominating and evaluation commissions, the number of nominees submitted to the governor, and the ballot language in retention elections. The 2009 modification, moreover, required that the created commissions (the Judicial Nominating Commission and the Judicial Performance Evaluation Commission) sunset on June 30, 2012. Click Here
The legislative challenge to the Tennessee Plan continues in the 2011-2012 legislative session. There are several pending bills that would eliminate, modify, or restrict the current system of merit-based selection and retention of appellate judges. Such bills include, among others, SB127/HB173 (election of all judges statewide); SB699/H958 (popular vote of all judges, including political party nomination for election of justices to the Supreme Court); SB281/HB231 (nonpartisan elections of Supreme Court justices); and SB646/HB1702 (requiring 75% of vote for retention of appellate judges). There also is a senate joint resolution pending (SJR183) that seeks to amend the Tennessee Constitution to expressly authorize the General Assembly, by statute, to provide for merit-based appointments and retention elections for appellate judges.
The League continues to support the retention of the Tennessee Plan, the merit-based process for selection and retention of judges at the appellate level, or its equivalent, as the process that best promotes a fair, competent, and impartial appellate bench and enhances respect for our court system.
Strengths of Tennessee Plan
The Tennessee Plan was originally adopted in 1971 with bi-partisan support to secure a highly qualified, nonpolitical appellate bench. As amended from time to time, it has operated effectively for almost four decades in achieving its goals.
1. Merit--the Tennessee Plan provides for an extensive screening process, including application, public meetings on candidates qualifications, and investigations and interviews with applicants. It also provides an evaluation process of judicial performance to enable voters to make informed decisions in retention elections. Merit selection tends to enhance the professional qualifications of the appellate bench (in studies from other jurisdictions, judges who were found to be poor performing judges or who were disciplined or removed from office were more frequently elected judges than merit-selected judges [see Vol. 75 Tennessee Law Review 501, 538, n. 243(2008)].
2. Independence--judicial independence is the foundation of our legal system, which is based on the principle that all who come before the court will be heard in a fair and impartial manner. Independent judges are able to act impartially and to make decisions consistent with the rule of law without concern for the day-to-day whims of politics or public opinion. Judicial independence also promotes our constitutional principles of separation of powers and serves to protect individual liberties and to ensure that minority rights are protected against popular or powerful interests. Under the Tennessee Plan, appellate court judges are not required to raise money, seek party support, or campaign for appellate office. In this way, public confidence in the integrity of the courts system as fair and impartial is enhanced.
3. Promotes Racial, Ethnic and Gender Diversity--a merit selection process tends to promote opportunities for selecting a more diverse group of judges. In Tennessee and nationwide, appointive systems have the potential for promoting more diversity on the appellate bench than systems that are based exclusively upon elections.
4. Although its opponents challenge the constitutionality of the Tennessee Plan, the Tennessee Supreme Court has held (and subsequently reaffirmed) that the Tennessee Plan is constitutional. A federal district court also has acknowledged that the Tennessee Plan was held to be constitutional. While opponents of the Tennessee Plan note that the Tennessee Constitution provides for the election of judges, the Tennessee Constitution also grants the Legislature the power and discretion to design the manner in which judges will be selected and retained. Courts have held that the Tennessee Legislature was acting within its constitutional powers in adopting and maintaining the Tennessee Plan as the method for nominating, selecting, and retaining appellate judges.
The Judicial Independence Project of the LWVUS has been ongoing since 2001. For additional information on the importance of judicial independence and merit-based processes of selection, visit http://www.lwv.org/content/safeguarding-us-democracy-quest-more-diverse-judiciary.
For additional resources, visit the website of the American Bar Association Standing Committee on Judicial Independence at www.abanet.org/judind/home/html; and the American Judicature Society website at www.judicialselection.us.
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