The Case for Elected Justices

We used to elect judges to the state Supreme Court. We should do it again.

I’m really getting tired of all these lawyers slandering the good name of some of our most distinguished state Supreme Court Justices.

Are they saying that former Chief Justices Riley Anderson and Lyle Reid were tools of special interest, bought and paid for by corporate contributions, unable to render just verdicts?

Of course they aren’t. But I would remind them that both distinguished jurists were elected statewide by the people of Tennessee, before the Legislature decided to ignore the specific language of the state constitution and began appointing the Supreme Court in 1994. Groups like Tennesseans for Fair and Impartial Courts are soliciting money from law firms to fight proposed legislation to mandate elected judges.

Does anyone see the irony in a special-interest group raising money from a special-interest group to prevent the election of judges because they might be influenced by special-interest groups raising money to elect judges?

Back when Tennessee followed the explicit language of the state constitution and required the election of the Supreme Court, it was rather a special case. Usually the state Democratic Executive Committee would put up a slate of judge candidates and they would run unopposed. I suspect the rise of the Republican Party led the Democratically controlled Legislature to decide that electing judges is a bad idea.

I will grant you that electing the Supreme Court, in many states, is not working well. Judge elections are getting to be expensive and the issues harsh. The Supreme Court got a case recently in which a coal company exec in West Virginia made huge contributions to elect a judge and got a favorable ruling in his court case.

In Alabama you have the spectacle of Judge Roy Moore, popularly elected based on his decision to post the Ten Commandments in the courthouse, rather than his judicial expertise.

But it doesn’t have to be that way.

You could have strict requirements—such as experience as an appeals court judge. You should forbid judicial candidates from receiving any political contributions. They would run on their record and they could solicit endorsements from legal groups, editorial pages, business groups, and civic organizations. It would be interesting to have a statewide election in which money played no role in the election process.

The Judicial Canon would also forbid judges to solicit campaign contributions.

It would be possible for “independent expenditures” by third parties to run ads on judges, but if the judges, the bar associations, and the newspapers identified these groups as trying to put undue influence on judicial candidates, I doubt they would be successful.

In every local judicial district, the district attorney and local judges are elected by the people. Are they all corrupt?

The alternative to electing the state Supreme Court is simple. Pass a constitutional amendment.

But, you say, the current system has been ruled constitutional. Voting yes or no to retain unopposed incumbents constitutes a vote of the people. Yes, it was ruled constitutional by a special panel appointed by the state Supreme Court. Yes, a panel appointed by the Supreme Court found the Supreme Court constitutional.

The current system has produced, generally, a group of fine jurists. (That includes Appellate judges below the Supreme Court, appointed since the 1970s.) But they are picked by a panel dominated by members of lawyer groups and these groups give a governor three choices to choose from. So the judges on the state Supreme Court are selected by the attorneys who practice in their courts.

Change the constitution, or go back to elections. Let all the people vote, not just the lawyers.

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