A special panel of the state Supreme Court has ruled that the state's appellate justices are being properly elected to office by being appointed by the governor then one day facing a retention election. This in spite of the Tennessee Constitution, which says judges are to be elected by a vote of the people.
This preposterous decision has maintained the status quo, though it has been subject to much criticism. But what are you going to do? It is up to the state Supreme Court to decide if something is constitutional or not. Now Gov. Bill Haslam, Lt. Gov. Ron Ramsey, and House Speaker Beth Harwell have signed on to a proposal to put the current appointment of judges on the ballot as a constitutional amendment to let the people decide whether they want the judges appointed or elected.
So the top three officeholders in the state are acknowledging that the current selection of judges is unconstitutional? If the current selection and retention method is indeed constitutional, then there is no reason to amend the constitution. If it isn't, then the appellate judges in this state are holding office unconstitutionally.
So if the Legislature follows through with the idea of amending the constitution to make the current system legal, the Legislature is admitting that the current judges have been improperly appointed
So appointing judges instead of electing them may go on the ballot in 2014. What happens when the people of Tennessee vote overwhelmingly to defeat this proposal, preferring that judges be elected rather than appointed? You can bet that Republican conservatives and Tea Party members will be campaigning against it. Haslam, Ramsey, and Harwell have said they will campaign for the measure.
(So Haslam runs for re-election while advocating the appointed judges constitutional amendment, likely very unpopular among Republican rank-and-file voters? Is this smart?)
How then can the judges and their supporters argue that the current appointment process is legal and constitutional? How will they have the nerve to continue with the current appointment process if it has been admitted, by putting it to a referendum, that it isn't constitutional, then having the people vote it down?
Don't get me wrong. I think putting it to the voters is the right thing to do. After all, it can't be left to the judges to decide the issue. Yes, the state Supreme Court recused members from making the decision on whether the appointments are constitutional. They appointed a special panel of judges who decided everything is just hunky dory. But can any attorney who practices in Tennessee, sitting as a special judge, render a decision to throw out the current members of the state Supreme Court? It would be like the current members of the state Legislature voting for a bill to term-limit themselves. Really?
A referendum on whether judges ought to be elected or not should proceed, but the Legislature should be honest about it. They should acknowledge that it is likely the people will vote against making appointed judges legal. So if we return to electing appellate judges, then we need to have safeguards in place to prevent some of the abuses that have occurred in other states where judicial elections have become big-money auctions.
There should also be a constitutional amendment that limits the amount of money that can be spent on judicial elections—a cap for sure and possibly a prohibition on contributing any money at all to judicial candidates. You could have a special panel to vet candidates and recommend a slate of qualified candidates, as now, but instead of having the governor pick one let the voters do the picking.
This prevents the multi-million dollar judicial campaigns that produce judges beholden to special-interest groups who put up the millions to get them elected.
There is an argument against electing judges. But it doesn't matter if the constitution says they will be elected. That's why safeguards need to be part of any reform. The fact remains that the constitution requires elected judges, and the people will likely vote to return to the practice.
We need to be prepared for it.