Tennessee Judicial Selection Commission
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Modified Missouri Plan
Under Tennessee's "Modified Missouri Plan" the governor of Tennessee fills vacancies occurring on the Tennessee Supreme Court, the Tennessee Court of Appeals and the State Court of Criminal Appeals due to the death, resignation, or impeachment and removal of a sitting judge.
The governor is not free to choose anyone for these appointments, but instead must select from a list of three potential nominees chosen by a commission, currently composed of 17 members, the makeup of which guarantees it to be bipartisan and representative of minorities, with members representing both the legal community and the citizenry at large. If the governor rejects all of the persons nominated by the commission, he can then order the commission to prepare a new list of three other prospective nominees. When this occurs, the governor must make a selection from this second list. (In practice this seldom occurs, but The Tennessean reported such an instance on July 27, 2006. The assumption had always been that none of the names on the first list could be resubmitted on the second list, but the commission appears ready to ignore this. The person chosen by the governor then begins service on the court; at the first statewide general election following his or her appointment the person's name is placed before the public on the ballot on a simple yes-no basis, e.g., "Shall Jon R. Smith be elected and retained as Judge, Court of Criminal Appeals, for Middle Tennessee?" If a majority of voters decides this question in the negative, the process outlined above starts over. Every eight years, 2006 being such a year, all members of all of the appellate courts of Tennessee are subjected to this process as well. All appellate judges are subjected to this process on a statewide basis, not just in the "Grand Division" from which they are appointed. In 2006, all of the judges submitted for approval received an affirmative vote of at least 70 percent.
A separate, 12-member panel reviews the record of incumbent judges and makes its results public approximately six weeks prior to the retention elections held at the beginning of each full eight-year judicial term and reports its recommendations. This report gives the panel's rationale for its recommendations based on the public record of each of the judges and an interview process in which potential areas for improvement are noted. The report summarizes these findings and notes the vote by which judge was recommended (or, theoretically, not recommended) for retention, although not how each individual commissioner voted. This report is then published in the state's major metropolitan newspapers; the 2006 report appeared in Sunday papers as a special section. The 2006 report endorsed all of the incumbent judges seeking re-election, most unanimously and none by a margin of less than 8-3; one member appointed to the review panel this time was unable to serve.
This process was adopted as a compromise between Democrats in the Tennessee General Assembly and Republicans from East Tennessee. Many Democrats favored the process as a way of limiting the power of then newly-elected Republican governor Winfield Dunn. Republicans from East Tennessee who favored the creation of a medical school at East Tennessee State University, which Dunn opposed, agreed to support the Modified Missouri Plan in exchange for support by the Democrats for the medical school, which was subsequently created as the James Quillen School of Medicine.
Since the Plan was first implemented in the 1970s, only one judge (State Supreme Court Justice Penny White) has been removed under its provisions. (From 1974 to 1994, the Supreme Court was removed from this process, and it applied only to the intermediate appellate courts, the Court of Appeals and the Court of Criminal Appeals.)
Makeup of the Judicial selection Commission
The Tennessee Judicial selection Commission consists of three Members nominated by the Tennessee Trial Lawyers Association, three members nominated by the Tennessee Criminal Defense Layers Association, three members nominated by the Tennessee Bar Association, five lawyer members that are not criminal or personal injury attorneys, three members nominated by the Tennessee District Attorney's Conference and three non-lawyer members. The three non-governmental nominating organizations must have a representative for Eastern, Middle, and Western Tennessee.
Controversy of Tennessee Judicial Nominating Commission
Following the surprise election of Gov. Winfield Dunn—the first Republican elected to the office in 50 years—Democrats began to fear they might lose statewide judicial elections as well. In 1971, Democrats in the state legislature led by then-Senate Speaker John Wilder led a plan to create the Tennessee Plan.
The legislation, called the “Tennessee Plan for Judicial selection and Evaluation,” created a 17-member commission of individuals appointed by the speakers of the House and Senate to evaluate potential Supreme Court and appellate court judges. This Judicial selection Commission then offers three candidates to the governor who selects one to fill a judicial vacancy.
The scheme was repealed in 1974 due to its unconstitutionality. In 1977, Tennessee voters were asked to amend the Constitution to legalize the Tennessee Plan. Fifty-five percent of Tennesseans voted against the amendment. Still the constitutionality of the plan is challenged to this date Despite the public sentiment against the Tennessee Plan and the Plan’s obvious unconstitutionality, the legislature again voted to enact the Plan in 1993, stripping Tennesseans of their right to vote for judges. Never before or since in the history of the state has legislation passed that so blatantly contradicts the Tennessee Constitution.
Possible End of the Tennessee Judicial Nominating Commission
During the 2007-2008 Legislative Session in Tennessee there has been an fight over if whether the Tennessee Plan would still be used to select judges in the State of Tennessee.