Tennessean - Opinion: Foes cast a smoke screen to change judicial selection

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Foes cast a smoke screen to change judicial selection
http://www.tennessean.com/article/20110420/OPINION/304200068/2069/OPINION/Foes-cast-a-smoke-screen--to-change-judicial-selection?source=nletter-news

By Robert J. Mendes
April 20, 2011

The Tennessee Plan for selecting and retaining judges is again under attack in the General Assembly. Opponents want to scrap a system that has worked well for decades.

Tennessee’s appellate judges are well-respected. Our state is thought of as having an effective judicial system. The opponents of the Tennessee Plan are seeking political gain, but they are risking a judicial system that is fundamentally fair to all Tennessee citizens.

Opponents to the Tennessee Plan are using sound-bite politics for their attack. The sound bite is that “the Tennessee Constitution requires judges to be elected.’’ So, the opponents argue, any system that allows a judge to be appointed under any circumstances is unconstitutional. But, with sound-bite politics, you always have to ask about the rest of the story. Here, the real battle is about whether our Supreme Court and Court of Appeals elections will be influenced by special interests and campaign financing.

Opponents don’t mention that the Tennessee Constitution uses the term “election’’ to refer to both yes/no referendums and popular elections. Opponents don’t mention that the Tennessee Constitution specifically contemplates that an election for governor must be a popular contest between candidates, while the Constitution is silent about what kind of election should take place for appellate judges. At worst, the Tennessee Constitution is ambiguous on the subject; but it certainly does not require popular elections among multiple candidates for the Supreme Court and Courts of Appeal. For this reason, the Tennessee Plan opponents’ sound bite is a smokescreen for the real debate.

Everyone in the debate should be able to agree that, within the boundaries of the state constitution, the General Assembly has the duty and power to decide how appellate judicial elections take place. That is where the debate should start. The second, more important part of the debate should be about what type of system will be best for all the citizens of Tennessee.

System blocks influence

The current system for filling appellate vacancies is a two-step process. First, vacancies are filled after a recommendation by a commission appointed by popularly elected legislators and selection by the popularly elected governor. Second, there is a yes/no election by citizens about whether to retain the selected candidates. This approach balances the constitutional requirement that the citizens vote on appellate judges with a desire to insulate appellate judges from the possibly corrupting influence of campaign finance funds.

This balance allows appellate judges to consider the rights of each individual Tennessean equally instead of allowing the possibility of having to consider what citizens or special interests may support or oppose them.

The Nashville Bar Association favors retention of the current merit-selection and retention process for the courts of record in Tennessee, because this process continues to ensure a fair and independent judiciary. Let’s hope the General Assembly gets beyond the sound bites. Tennessee deserves to have its government debate the real issues about how to best select appellate judges for all Tennesseans.

Robert J. Mendes is president of the Nashville Bar Association.