For just over four decades, Tennessee judges have been selected through a scheme that is undesirable, unconstitutional, and unaccountable. The contrivance was conceived by a Democrat legislature desperate to build a firewall around the judiciary as Republicans made political gains and has since been dominated by special interests working their own ends.
The result has been a predictable sea change in jurisprudence: the new faction of judicial elites made the buckle of the Bible Belt an abortion destination, coddled callous criminals, and paved the way for an income tax – all defects opponents hope to resolve in judicial elections this week and three otherwise unnecessary constitutional amendments in November.
Today’s court has a majority of Democrats screened by the scheme and appointed by a Democrat governor to whom they each gave thousands of dollars. They appointed the Tennessee Democrat Party’s legal counsel to be attorney general (who subsequently declined to challenge ObamaCare). And, amidst financial backing from trial lawyers, they’ve hired alumni of Barack Obama’s campaigns to run their own. They are, in other words, natural products of the scheme.
But once upon a time, Tennessee’s government was limited by its constitution rather than the admittedly creative imagination of our judges. Our constitution plainly states, “The judges of the Supreme Court shall be elected by the qualified voters of the State.” For its first century, the clause was interpreted as you might expect: Joe ran against John in a partisan, contested election. If a judge were to step down midterm, the governor would appoint his replacement. Unique to Tennessee, the Supreme Court would then select our attorney general.
In 1970, Tennesseans elected our first Republican governor in 50 years. As our current Democrat attorney general has related, the Democrat legislature at the time borrowed a scheme from Missouri in order to prevent Republicans from gaining a majority on the court – and with it the attorney general’s office.
The plot mandated by statute that a “nominating commission” of legal pooh-bahs representing liberal special interest groups present the governor with three candidates from whom he must choose his appointment. For most of the last decade, including for all members of the current Supreme Court, the junta included a mandatory quota selected by the local trial lawyers guild.
Further, the plan controversially redefined “elect” to ensure that the judges they put on the court would never face human competition, and instead faced merely a question of whether to be retained. Scholars like Vanderbilt Law professor Brian Fitzpatrick have concluded that unanswered questions from legal challenges “comprise a compelling case for the view that many appellate judges in Tennessee have been selected in an unconstitutional manner for the better part of four decades.”
Our judiciary was designed to be a democracy but what we got is a hypocrisy. Our current judges are in the strange position of legally equating the retention election they face with a genuine contested election while simultaneously insisting that the election should involve no politics (and no opposition).
The lack of accountability in the system is particularly disturbing given the court’s self-proclaimed “modernization” of the law. One Supreme Court justice observed, “Those of us on the 74 court felt that we had to make up for 100 years of not bringing law up to date.” And the court kept moving left, expanding the practice of trial lawyers, appointing attorneys general who explored the legality of an income tax, and becoming one of 16 states to discover a right to abortion independent of the U.S. Constitution.
But regardless of the current judges, the whole system could end in November when a constitutional amendment inspired by the founding fathers faces the people. Whether Tennesseans support that change or demand that we follow the current Constitution, the days of unconstitutional judicial selection in Tennessee are numbered..
Grant Everett Starrett
President of Tennesseans for Judicial Accountability.