July 10, 2008

Judge Not

David Fowler of the Family Action Council of Tennessee explores the absurdity that is the way Tennessee picks its appellate judges in his most recent email message, headlined, The Campaign You Never Saw for the Person You Never Heard Of. When it's online I'll link it, but meanwhile here it is, verbatim...

In case you missed it, the first campaign salvo of the season for the "election" of Tennessee's appellate court judges just came and went. To be honest, I missed it. It was in this past week's Sunday paper ... at least in the state's major newspapers.

Oh, you don't live in one of those cities? Oh, you don't take the Sunday paper because you prefer to buy gas to get to work? Oh, you had too many other things going on over the Fourth of July weekend to pay close attention to the Sunday paper? Well, that's too bad. That just means that you, like most Tennesseans, will start going to the polls next week for early voting (July 18th) only to find that you are supposed to vote on five judges you have probably never heard of.

What in the world am I talking about? I'm talking about the "Tennessee Plan."

It's what a lot of common sense, just-read-the-text-of-the-constitution-lawyers call an unconstitutional process for electing our appellate court (Court of Appeals and Supreme Court) judges in Tennessee.

Even though Tennessee's Constitution uses the same kind of language to call for the election of judges as it does for legislators, candidates for the state Court of Appeals and state Supreme Court don't actually campaign for election to the appellate court bench like candidates do for every other "elected" office. Rather, they are appointed by the Governor. But the Governor only gets to appoint from a list of names provided by a panel of people largely controlled by legal organizations. Then, after the judges have been on the bench a while, citizens get to decide whether to "retain" them as judges.

Doesn't sound like an "election" to anyone but lawyers and easily misled politicians. In fact, even the Governor, who says he doesn't like the process, recently told the Nashville Rotary Club that it didn't matter what he thought the Constitution meant regarding "elections." He said that the judges said what "election" means. Nice attempt at punting, Governor, but you took an oath to uphold the Constitution and you're not permitted to delegate your responsibility to judges on this one. No judge and no lawyer has ever said that the appointment and retention process set forth in the Tennessee Plan is required by the Constitution. At best it is permitted. Wouldn't it be nice if the governor, who doesn't have to run for office again, had the courage simply to say whether he wants an appointment process or wants to see the people be able to vote into office who they want?

Of course, since none of these judges run for office, we voters don't really know anything about them. But, have no fear. A commission (once again appointed people!) puts together a report (see attachment or go to www.tncourts.gov) and they tell us what they think. Then they publish it in newspapers a few weeks prior to the "election." So, if (and that's a big "IF") you saw the "report" in Sunday's paper, then you saw the entire "campaign." Nice, short, tidy ... and uninformative.

Of particular note was the Commission's recommendation on Justice William Koch, Jr. The official recommendation reads: "The Commission unanimously recommends the retention of Justice William M. Barker on the Tennessee Supreme Court." Since Justice Barker was actually recommended by the Commission two years ago and is planning on retiring in September, it sure looks like the public got a "cut and paste" job when it came to putting together the recommendation for Justice Koch. It doesn't exactly inspire confidence.

This unconstitutional "election" process was set to be renewed for another six to eight years by the General Assembly. Fortunately, last session, a majority of the Tennessee Senate respected the Constitution or, at least at a minimum, realized that what we are doing isn't serving the public's best interest, and they chose not to renew the plan. Unfortunately, the Tennessee Plan remains in place until next June 30th which means that the General Assembly could vote to renew it when they come back next January. And, of course, next year you can expect that all the state legal organizations will be back trying to lobby the legislature into thinking that "election" doesn't really mean election in order to renew the Tennessee Plan.

So, if you want to have a say in who sits on the Tennessee Supreme Court or you at least want to have as your state legislator a person who will honor the plain language of the Constitution they are sworn to uphold, then you better ask the candidates for the General Assembly where they stand on the issue. Legislative candidates, unlike Judges, have to convince you to vote for them and, unlike with Judges, you get to ask them questions.

So, while the opportunity is yours, consider asking the candidates for the state House and Senate if they believe the Tennessee Plan should be renewed or if they believe Judges should run for office just like every other "elected" official. If you don't, voting for your state Representative or Senator may be as close as you get to "electing" your Supreme Court Judges.

To clarify, the Tennessee Appellate Judges Evaluation Report that Fowler mentioned did have the Koch/Barker cut-and-paste error in the version published in The Tennessean, but the commission corrected it in the final online version linked above.

Publishing the evaluation report is required by law, to "inform" voters as to the evaluation results. The results of course are always predictable: A group of judges who were initially picked by a panel of legal industry insiders are found to be doing a good by yet another panel of legal industry insiders. In this year's evaluation report, every judge up for a "retention" vote got nothing but positive recommendations. Do you really think the same legal industry special interest groups that picked these judges in the first place would ever recommend that one of the judges they picked should not be retained?

Of course not. For that would weaken and undercut the legal industry special interest groups' claim that they are more qualified than the voters to pick good judges.

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Fowler in a subsequent email giving me permission to publish his piece here, said the judicial evaluation report was only published in seven newspapers in the state - in the four major cities (Nashville, Memphis, Knoxville and Chattanooga) plus Jackson, Bristol, Kingsport, and Johnson City. Left out: the people in Cookeville, Crossville and even Clarksville, Tennessee's fifth-largest city.

Fowler says it might be interesting if someone had the money to do a poll to find out how many Tennesseans even saw the publication. I'd wager the answer is "very few." And the subset of people who not only saw the publication but also read it would be a fraction of that few.

Says Fowler, "You know, it would be less an insult if they just appointed judges and didn't even mess with this mockery of 'informing' voters and then having a 'retention election'."

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An AP reporter recently interviewed me briefly about this issue, and noted that not all Republicans believe the "Tennessee Plan" is unconstitutional. That's true of course. But the Tennessee Republican Party is in overwhelming agreement that the current system is horribly flawed and must be reformed. Some want it reformed to lessen the role of lawyers, others want the currently secret meetings of the Judicial Selection Commission to be open to the public, while others believe the whole system should be scrapped and Tennessee should return to contested elections to pick appellate judges. There's little or no support in the Tennessee Republican Party for retaining the status quo.