April 11, 2008

Judge Not

A City Paper story which reports that the law that created Tennessee's "Judicial Selection Commission" may be allowed to expire contains an interesting juxtaposition of viewpoints on the way Tennessee's judges are appointed.

Republican Lt. Gov. Ron Ramsey, who as the leader of the state Senate gets to appoint some members of the Judicial Selection Commission, tells the City Paper he doesn't like it that the law requires him to make his appointments from nominees recommended by a specific list of interest groups. That list includes the Tennessee Trial Lawyers Association - the trial bar - which historically leans toward Democrats rather than Republicans. Requiring the Republican leader of the senate to appoint commission members from an interest group that is heavily tied to the Democrat Party and one of the Tennessee Democrat Party's biggest financial benefactors seems to be a rather biased process.

House Speaker Jimmy Naifeh, though, is reported to be just fine with the way things are. Of course, the way things are is that liberal interest groups control the process, which gets you a liberal-leaning state judiciary.

There are many folks who believe the Judicial Selection Commission process ought to be allowed to expire for another reason: It is patently unconstitutional. The Tennessee state constitution says judges are to be elected by the people. The Tennessee Center for Policy Research has a great history of how the unconstitutional Judicial Commission came to exist despite the expressed opposition by the people of Tennessee in a referendum.

In 1994, Tennesseans' constitutional right to elect state judges was hijacked when lawmakers decided that partisan politics and special interests should overrule the Tennessee Constitution.

Since 1853, direct elections of state judges have been guaranteed by the Constitution. 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," and Article VI, Section 4 states the same with respect to inferior courts. This system of judicial election provided the state's courts with competent justices for 140 years as Tennessee's voters utilized their constitutional right and chose qualified judges to serve in the state's Judicial Branch.

The case, Johnson v. Bredesen, is pending in U.S. District Court, so it won't be ruled on by any unconstitutionally seated Tennessee state judges, all of whom would clearly have a huge conflict-of-interest.

The new American Courthouse blog, written by Dan Pero at the American Justice Partnership, had a very interesting post Thursday commenting on an Economist magazine article. Says Pero:

The Economist also noted that, "comprehensive legal reform might help keep the tort war from seeping into judicial elections." This indicates that The Economist editors are, unlike many of their American counterparts, aware of the extent to which the trial bar has corrupted and gamed the system in the U.S., from the law school to the bench.