Next year, the voters will be asked to approve a constitutional amendment to have the governor appoint appeals court justices, subject to ratification by the Legislature.
What happens if they don't? Will the voters be ignored again?
The constitutional amendment is an effort to fix a glaring hole in the logic of our present appeals court judge selection system. The Tennessee Constitution says that they shall be selected by the voters. Under the tortured logic supporting our present system it is argued that after they serve an eight-year term, they must stand for a retention election and the voters get to decide whether to keep them or not. After they've been there eight years. And suppose a judge serves one term and does not stand for a retention election? How is it that they will have ever been elected by the voters?
The legal community is almost unanimous in thinking that appointed judges are better than introducing "politics" into the process of judge selection. But even though you think it's the right thing to do, should you ignore the constitution?
Well, there is precedent as lawyers like to say. In 1978 there was a constitutional amendment on the ballot to eliminate the election of appeals court judges and have them appointed. Something that had been going on since 1971. But it was defeated by the voters. But the appointment of the judges continued.
If the voters approve the amendment to the constitution next year the conundrum will be resolved. But passage of the amendment is by no means certain. It has to pass, first of all. Then it has to have more people vote for it than half the total vote in the governor's race.
What happens then?
If the voters reject appointing judges will we again just continue appointing them? All indications are that we will.
Challenges to appointed judges have been rejected by the courts. These challenges have come from John Jay Hooker, who has had a long and colorful career in Tennessee politics. Hooker is an ardent constitutionalist and an eloquent debater. But he is arguing against a position that is favored by the judges he is arguing before. Even in the case of special judges appointed to hear the case, the judges are lawyers who have or will practice in these same courts before the affected judges.
The present system is supposed to consist of a Judicial Nominating Commission that screens candidates and presents a list to the governor. But the Legislature refused to reauthorize the commission last session. So now it does not exist.
The amendment election next year, should it pass, will give some clarity to the structure of the judicial system going forward. But if it fails again, what happens?
Will legislators require a return to elected appeals court judges? Will they re-authorize the judicial nominating system? What if they do neither?
Though appeals court judges have been appointed since 1971, we did elected members of the state Supreme Court for a couple of more decades, without any fanfare or partisan rancor. You may remember distinguished elected jurists like Justices Riley Anderson and Lyle Reid, back in the 1990s.
But that isn't likely to be the case going forward should we return to electing judges. Pressure groups will likely get heavily involved in running judge candidates. And that's what the legal community shudders to think about.
I don't know that it is clear to the voters that they will be asked next year to officially decide they want appointed judges. Those who want to appoint judges have a dicey job. They have to make the issue public enough to get enough votes for it to pass, but not make it a big issue that arouses conservatives to rally to defeat it.
I'm sure advocates for appointing judges will not agree—but if the voters reject an amendment for appointing judges I do not believe you can continue to do it.
But I guess that decision will again remain with appointed appeals court judges.