Should judges be elected or appointed?

At breakfast in Washington last week with Tom Ingram, the former chief of staff to Tennesseee Senator Lamar Alexander, I asked what the hot political talk was in Tennessee these days. It turns out that there is a lot of discussion around getting square with the constitution — the 1870 Tennessee state constitution, that is.

That constitution, banning slavery, was ratified as a requirement for re-admission of the former Confederate state back into the Union. But the discussion today has nothing, of course, to do with human bondage. In fact, it has to do with a holdover amendment from the 1853 Tennessee state constitution, requiring the election of judges.

That provision was dutifully followed with elections in the general sense of that term until the 1970s when, in order to buffer the judiciary from the political process, the state, through a legislative statute, adopted the “Tennessee Plan.” Under the plan, trial judges are still subject to popular election, but appellate judges — and since, 1994, the Supreme Court justices — are chosen by the governor from a list of acceptable candidates, as determined by a state commission. Those judges and justices are then subject to a “yes/no” retention vote in the next general election. But is this really an “election” in the sense that Tennessee’s framers imagined?

Since the Tennessee Plan was adopted, only one judge has ever lost a retention election

Now a movement is building to either amend the state constitution to incorporate the Tennessee Plan as the official method for judicial choice, or, by a new statute, require popular elections for all judges as clearly stated in the state’s founding document. There is no doubt that the latter would lead to a more politicized judiciary. Since the Tennessee Plan was adopted, only one judge has ever lost a retention election: Penny White, whose 1996 decision to reject the death penalty in a murder and rape case led to a state-wide campaign to dump her. White’s removal was endorsed by the state’s two U.S. senators at the time, Bill Frist and Fred Thompson, as well as the governor, Don Sundquist, and yet, ironically, judicial ethics required her to remain silent throughout the campaign, unable to answer charges that she was “weak on crime.”

The Tennessee Plan has been tested in the state’s courts and survived constitutional scrutiny there. But those who oppose it insist that no panel of judges would rule against a plan that would subject them, and other judges, to public approval. The conversation is about to get ratcheted up a notch. Last March, Tennessee Lieutenant Governor Ron Ramsey cast the deciding vote in the state’s Judiciary Committee, advancing a bill that would require popular elections of all judges. The bill now moves to another senate committee before it can be addressed by the state’s House of Representative.

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