As a former legislator, I know that it is sometimes hard to know what the best policy is and how to balance competing policy values. But it is always a good policy for the legislature to follow the plain, common sense language of the state’s constitution, and it is always bad policy to disregard it. When our fundamental, supreme governing law ceases to be just that, then we are in trouble. What regard to give our constitution in state policy will be at the heart of a major issue this legislative session.

At issue is the election of our state Supreme Court Judges. Article VI, Sec. 3, of the state’s constitution provides that the “Judges of the Supreme Court shall be elected by the qualified voters of the State.”

Sounds pretty simple to the “man on the street,” but to some lawyers and legislators to be “elected” means first being appointed by the Governor from a slate of “candidates” nominated by a commission with Joe Citizen finally getting to vote after the Judge has been in office. But even then Joe Citizen only gets to vote on whether a particular Judge should be “retained.”

There is no means by which Joe Citizen can have a choice of Supreme Court Judges on the ballot. Can’t happen. No one can run for the position of Judge on the state’s Supreme Court. No one can run against a Judge on the Supreme Court who legislates from the bench policies that are inimical to the majority of Tennesseans. (And don’t think judges don’t make policy and make law.) My bet is that only lawyers and misled politicians consider this appointment and retention process as being “elected by the qualified voters of the State.”

As if this subterfuge and mangling of plain, everyday words like “shall be elected” is not problem enough, the “campaign” for Judge on the Supreme Court consists of an evaluation by another appointed commission that is published in a few of the state’s major newspaper on the Sunday of July 4th weekend. How is that for making sure the average Tennessean knows whom they are voting for?

Those who like the word games that support this process of keeping our judges away from the people also like another word game, namely, calling this process “merit selection.” Now who doesn’t like the sound of decisions being based on merit instead of “politics?” But politics has not been removed from the process, simply removed from the hands of the people and placed in the hands of politicians and their appointees to the commission. But perhaps most importantly, what “merit” is there in ignoring the plain language of the state’s constitution?

Sen. Mark Norris (R-Collierville), himself a lawyer, got it right when he said recently,

Who are we to say that what we now have is ‘merit selection’ or ‘merit-based? The ultimate arbiters of the merit of anyone to administer justice in Tennessee are the people of Tennessee; not those appointed to commissions; not those elected to preside over the commissions others appoint. If the people of Tennessee wish to continue the process by which a select group of Tennesseans make their recommendations to a governor elected by the people, rather than directly by the people, then so be it ... And let the Constitution of Tennessee reflect it accordingly (Nashville Post, January 27, 2009).

Not only well said, but a challenge to those who want to continue the current process to indeed, “let the Constitution of Tennessee reflect it accordingly.” Having the state constitution allow for appointment and retention is done simply enough by supporters of the current system filing and presenting to the legislature (and ultimately to the people) a proposed amendment to our state constitution that would allow for it.

Of course, a short history lesson reflects that such an amendment has already been presented to our people back in the late 1970s, along with about 12 other proposed amendments to our state constitution. The proposed amendment for judicial appointment and retention elections was the only amendment rejected by the people.

Undoubtedly supporters of the current system will say something like, “The Court has already ruled that the current election process is constitutional.” But that that does not settle things at all.

First, not all lawyers agree that the issue has been directly resolved as cleanly as appointment and retention advocates would have you believe (Our thanks to attorney Maclin Davis for his short analysis of this issue; for a law review length discussion, see article by Vanderbilt law professor Brian Fitzpatrick).

Second, if there is any question about what our constitution says, why not let those to whom it actually belongs resolve the issue for themselves? Are not the people under our form of government even greater in authority than the courts themselves, having created and retained the power to abolish the courts, and are not the people the final arbiters of what they want their constitution to say?

In the face of such questions, it is not enough for our politicians to say that appointment and retention really is a better process and produces results that are more just and equitable. Assuming for the sake of argument that such a statement is true, that is not the point. The point is following the plain language of the constitution in accordance with the oath our legislators took. The people in 1970 adopted a policy; the people in the late 1970s affirmed it; and it is not up to legislators to disregard it as they have done for the last 14 years. Legislators who like the current process can present an amendment to our constitution to the people and act like statesmen by making their case to the people for ratification of the amendment.

This election of our state Supreme Court Judges will be resolved one way or the other this session because the current appointment and retention process will be effectively repealed as of July 1, 2009 (technically the current commission will “sunset” if not renewed by affirmative vote of the legislature). If the legislature takes no action to keep the current process, then during next year’s legislative session the legislature can develop a real election process.

The legal special interest groups who like the current process will be on the Hill every day trying to convince your state Senator and Representative that real elections are a bad idea. They will be happy to concede to legislators that the “current system may have its problems,” but that will suggest that all that needs to be done is simply to “improve the current system.” But the question is not whether the system can be improved; it is whether it is constitutional.

If you have an opinion about your constitution and your judicial system you better make sure your voice is heard too.

David Fowler