There are four state constitutional amendments on the November ballot. Three of the four amendments have taken a great deal of time and considerable effort by those shepherding the process. Only the federal constitutional amendment process beats this kind of intestinal fortitude.
Amendments 1, 3 & 4 are fairly easy “yes” votes for most conservatives in the state. Amendment 2, however, has people, especially those involved in the process, at odds with the best solution.
Amendment 2 basically deals with how we Tennesseans get our Supreme Court and Appellate Court judges. Amendment 2 is the proposed solution to a constitutional crisis we have been having since 1971, when the state legislature changed, by statute not amendment, the way we seat our high court judges.
The proposed solution, approved by both state legislative bodies through a lengthy process, goes back to the original 1796 state constitutional method and adds the Governor to the appointment process. It is being called the “Founders Plus” plan and mirrors the federal method of appointment but adds the state house approval to the mix.
During this lengthy and sometimes heated approval process, a discord developed between the “establishment” faction and the “tea party” faction. These names are used in parenthesis because not everyone who disagreed with the amendment solution fell into those categories.
The heart of the disagreement came down to which high court judge selection method (we have had several over our state’s history) was the best for Tennesseans in this day and age. Should we stay with the appointment method or go back to popular election?
Proponents of the appointment method agreed with our Founding Fathers, that high court judges should not be involved in the political minefields of popular elections. However, with distrust in government at an all time high in many circles, the proponents of popular elections felt the best way to keep the power of government in the hands of the people was at the voting booth.
Both sides have merit. The devil is always in the details and politics is a nasty business sometimes. Our state constitution has gone through several changes on the judicial selection method, some politically motivated, some demanded by the people.
Below I have listed a short synopsis of the judicial selection method history that I have gleaned from several Tennessee history books. Popular election has held the longest run.
In 1796 our original document gave the power to appoint judges to the legislature. In 1831 there was a movement in the legislature to abolish the Court altogether (the court served at the whim of the legislature and not an equal branch of govt at that time), the issue of slavery rights was in full swing and Tennessee court system was deemed the most expensive and least efficient in the country by critics. Tennessee held a constitutional convention in 1834 and the judicial issue was front and center. But end result still gave power of appointment to the legislature. In the years leading up to the Civil War the judicial issue raised its head again, with many states in the south moving towards judicial popular election (Mississippi was first in 1832) during the Jacksonian populist era. In 1849 the issue finally caught traction and the voters approved the judicial popular election in 1853. That continued till around the late 1960’s when critics were opposed to the state party officials picking the candidates on the ballot (the way the process worked). This movement culminated in 1971 when the “Modified Missouri plan”.merit selection process became law by statute giving power to the Governor to appoint. In 1973, a Republican Governor was elected and the Democrat controlled legislature repealed a portion of the statute and kept popular elections for Supreme Court justices (but kept the merit process/Gov appt for the Court of Appeals and Court of Criminal Appeals). In 1994, the legislature voted by statute to put the state Supreme Court back in the merit selection/Gov appt process. Currently, the merit selection process has been sunseted with a solution on the ballot in November.
Below is a round up of how other states select high court judges courtesy of the American Bar Association.
State High Courts:
For state high courts (which are called supreme courts in 48 states) a total of 38 states have some
type of judicial elections. The breakdown of selection systems for state high courts is as follows:
· Seven (7) states have partisan elections (AL, IL, LA, NC, PA, TX, WV; All judges in
both Illinois and Pennsylvania run in uncontested retention elections for additional terms
after winning a first term through a contested partisan election)
· Fourteen (14) states have nonpartisan elections (AR, GA, ID, KY, MI, MN, MS, MT,
NV, ND, OH, OR, WA, WI; Ohio and Michigan have nonpartisan general elections, but
political parties are involved with the nomination of candidates, who frequently run with
· Seventeen (17) states have uncontested retention elections after initial appointment
(AK, AZ, CA, CO, FL, IN, IA, KS, MD, MO, NE, NM, OK, SD, TN, UT, WY; All
judges in New Mexico are initially appointed, face a contested partisan election for a full
term, and then run in uncontested retention elections for additional terms)
· The remaining 12 states grant life tenure or use reappointment of some type for
their highest courts (CT, DE, HI, MA, ME, NH, NJ, NY, RI, VT, VA, SC)
Intermediate Appellate Courts:
Thirty-nine (39) states have intermediate appellate courts. The breakdown of selection systems for
intermediate appellate courts is as follows:
· Six (6) states have partisan elections (AL, IL, LA, NC, PA, TX; see note above on IL
· Eleven (11) states have nonpartisan elections (AR, GA, ID, KY, MI, MN, MS, OH,
OR, WA, WI; see note above on MI and OH)
· Fourteen (14) states have uncontested retention elections after initial appointment
(AK, AZ, CA, CO, FL, IN, IA, KS, MO, NE, NM, OK, TN, UT; see note above on NM)
· Eight (8) states grant life tenure or use reappointment of some type for their
intermediate appellate courts (CT, HI, MD, MA, NJ, NY, SC, VA)
· Eleven (11) states do not have intermediate appellate courts (DE, ME, MT, NV, NH,
ND, RI, SD, VT, WV, WY)
How should you vote?
Vote Yes if you want judicial appointment.
Vote No if you want popular election.