This fall Tennesseans will have the opportunity to vote on a proposed amendment to the Tennessee Constitution that would solidify how appellate judges are selected—a measure which has seen support from both sides of the aisle, including from Governor Bill Haslam and former Governor Phil Bredesen. Dubbed “The Founders’ Plan,” this amendment provides that the governor select the appellate judges who sit on the Tennessee Court of Appeals and Supreme Court.
Since 1971, the state’s appellate judges have been selected under legislation known as the “Tennessee Plan” or the “Missouri Plan,” whereby the governor chooses the judges from a list of recommendations furnished by the Judicial Nominating Commission. The chosen judges run unopposed in yes-or-no “retention elections” at the next general election and every eight years thereafter. (Note that this procedure only applies to the Tennessee Supreme Court justices and appellate court justices; trial court judges are elected directly by the voters in each judicial district.)
One perceived problem with the current system has to do with existing language in Article VI of the Tennessee Constitution calling for the “popular election of all judges.” Though the Supreme Court has ruled that retention elections under the Tennessee Plan does meet this standard, some critics disagree. The proposed amendment would render moot this controversy by altogether removing the popular elections provision.
The Founders’ Plan, in part, provides that: “Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.” In other words, the governor would still pick a candidate from a list of recommendations provided, but the General Assembly would play a greater role by requiring candidates to go through a confirmation process, similar to that conducted by Congress for judges appointed by the President.
Proponents of the Founders’ Plan argue that the present system of allowing voters to (re-)elect appellate judges allows special interest groups with deep pockets to influence the elections. The obvious counterpoint to consider is whether and to what extent governors’ judge selections would be influenced by interest groups under the new procedure.
Although supportive of the proposed change, former governor Bredesen has said that he believes governors of both parties have appointed good judges for the past 40 years under the Tennessee Plan. In Governor Haslam’s most recent appointment to the Supreme Court, he elevated Justice Holly Kirby to the higher court from the Court of Appeals, where she had served for eighteen years. Haslam chose her from a panel of five attorneys that included one other judge.
In early 2013, both the Tennessee Senate and Tennessee House approved the Founders’ Plan amendment by overwhelming majorities: 29-2 in favor in the Tennessee Senate and 78-4 in favor in the Tennessee House. Will it fare with such flying colors at the ballot box? Tennessee voters will be the judge.
