The only state Supreme Court justice to ever be turned out by a retention vote still thinks it's the best way to pick members of the high court. In fact, former Justice Penny White says she is Exhibit A that the retention system works and that appeals court justices are subject to a vote.
White sided with the majority, 3-2, in overturning the death penalty in a particularly heinous crime in 1996. And she had the misfortune to be the only justice up for a retention vote that year—she had been appointed to the court two years before. Death penalty supporters like the Tennessee Conservative Union campaigned against her retention and the canon of ethics prevented her responding.
The state constitution says judges shall be elected by the voters, but Tennessee has used a system of appointing judges and then have them face an election at the end of their term on whether they are retained in office. There is a proposed constitutional amendment on the ballot next year to "align" a system of appointing judges by the governor with the constitution. The Legislature will ratify the picks.
In proposing the amendment, the Legislature is acknowledging that it believes the current system to be unconstitutional. What happens if the voters refuse to pass the amendment?
The state's appellate judge selection will be in limbo, says the author of the amendment, state Sen. Brian Kelsey, R-Collierville. Kelsey says he doesn't believe there is any consensus in the Legislature for any other alternative.
But if the voters reject the amendment, conservatives will likely bring a bill to call for the election of judges to the courts of appeal and the state Supreme Court. A bill could be brought to require judges who are retained in the 2014 election, instead of having an eight-year term, having to face popular election in 2016.
Lt. Gov. Ron Ramsey, the speaker of the Senate, argues that the constitution calls for judges to be elected by the "qualified voters of the state" and the amendment will make appointed judges constitutional. Ramsey is opposed to electing judges, citing his own statewide race for governor: "You are always raising money." If the amendment fails, he says he will work to find a solution that is constitutional. The big question is: How?
White's colleague at the University of Tennessee School of Law, Professor Judy Cornett, says the basic flaw in Kelsey's plan is how the governor will be guided in his selections. Without a process for applicants to be vetted, how will the governor make his choices?
Gov. Bill Haslam has appointed another commission to advise him on judicial selections, similar to the old system abolished by the Legislature. But it is no longer required, Cornett says, "there is an absence in the law of any method of bringing qualified candidates to the governor." White says "we have a good governor now, but what about the future?"
Kelsey argues that the governor can go out and recruit top-quality judges, be proactive instead of waiting for names to be sent to him. He cites the federal system as the model for his amendment, in which the president picks federal judges and they are confirmed by the U.S. Senate.
Cornett and White also wonder how much time legislators will spend during a legislative session examining the qualifications of judges. There are 29 appellate judges, including five members of the state Supreme Court. Kelsey foresees a joint committee of the Senate and House holding hearings.
Even though proponents of appointed judges see problems with the selection, they support passage of the constitutional amendment. The Tennessee Bar Association has endorsed passage. Cornett said there is fear in the legal community that if the amendment is defeated it will create a vacuum and the Legislature will pass a bill for the popular election of judges.
I think the situation is pretty accurately summed up by an off-the-record response from an amendment supporter when asked the question: What happens if the constitutional amendment fails?