July 31, 2008

The Power to Chose

The American Courthouse blog comments on Tennessee's Potemkin Judicial "Elections", in response to Tom Humphrey's story in yesterday's Knoxville News Sentinel headlined "Voters likely to approve judges":

These so-called retention elections are often promoted by advocates of "merit" selection as a means to give the public a voice in determining who sits on the bench. But legal scholars who have looked at retention elections have concluded they do little more than provide a rubber stamp to the choices of an tiny unelected, unaccountable tribunal of legal elites, which has the real power when it comes to selecting judges.

The two Supreme Court justices on the current ballot are William C. Koch, 60, appointed by Bredesen in June of last year, and Gary R. Wade, 60, appointed in May 2006. Both men said in interviews that they support the present system and might not even be candidates if faced with running in partisan, contested elections.

Humphrey reports that while state law allows incumbent judges facing retention votes to raise and spend money on campaigning, none of them have raised or spent any money at all, according to Registry of Election Finance reports.

That's because they don't have to. According to Vanderbilt University law professor Brian Fitzpatrick, researchers examining the retention election system for picking judges have found voters are generally inclined to vote yes and "stick with the status quo" when they have no real knowledge of the candidates or their qualifications.

In contested races, he said, voters are effectively educated by advertising and commentary from opposing candidates.

Humphrey reports that all of the judges on the ballot this year "were unanimously recommended for retention by the panel." No surprise: The commission has never publicly recommended rejection of a judge.

Reports have circulated in legal circles of judges receiving a negative review but then deciding not to seek re-election. Under state law, if a judge does not run, the evaluation report remains confidential.

(State Rep. Dewayne) Bunch said such evaluations have come across as a "wink-wink" situation, part of an "elitist mentality" that assures judges who go through the system will win.

It's worth noting that Bunch, a Republican lawmaker from Cleveland, Tennessee, also is a lawyer - meaning that when he assails the current system of voters not electing judges he risks affronting judges in front of whom he may well have to practice his profession.

His suggestion that voters should vote "no" on all judges on every retention ballot, as a way of protesting the current system, is an interesting idea I've heard from a number of people, though I don't sense a real widespread movement in that direction this year.

It is virtually certain that all of the judges on the ballot this year will be retained. Whether or not the system itself is retained after next year is much less certain.

The good news is that while the people of Tennessee have effectively been cut out of the process of selecting their appellate and Supreme Court judges, they are very much involved in the process of selecting the legislature that will decide that question.