Tennessee Plan
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Under this system, the governor of Tennessee fills vacancies occurring on the Tennessee Supreme Court and the State Court of Appeals due to the death, resignation, or impeachment and removal of a sitting judge.
Overview
The governor must select from a list of three potential nominees chosen by a commission, currently composed of 17 members - appointed by the Speakers of the House and Senate[1] - the makeup of which intends 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.
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 retention vote. If a majority of voters decides this question in the negative, the process outlined above starts over. Every eight years, 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.
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.
Origins
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.
Criticisms
Opponents argue that the system leads to a self-perpetuating system of selection in which the public at large is in effect shut out of meaningful decision-making. Another criticism is that the process violates the Tennessee State Constitution in that the yes-no balloting it calls for does not truly constitute an "election" in the sense intended by the document's framers. The pertinent section (Article VI, Section 3) of the Tennessee Constitution reads as follows:"The judges of the Supreme Court shall be elected by the qualified voters of the state."The Tennessee Center for Policy Research has filed a lawsuit to have the Judicial selection Commission process declared unconstitutional, which would return the selection of judges to the voters. The Plan should be ended, according to the TCPR:
Because the Speakers of the House and Senate select the members of the Commission, the Tennessee Plan actually makes the judicial selection system more susceptible to the effects of campaign contributions and favoritism. On August 12, 2004, Nashville attorney Bill Farmer donated $1,000 to the Speaker’s Fund, House Speaker Jimmy Naifeh’s personal political action committee. Less than a month later, Naifeh appointed Farmer to serve on the Judicial selection Commission. Former Senate Speaker John Wilder appointed John Lyell to the Commission in 2001. Lyell donated $2,000 to Wilder in the two-year period before his appointment. Lyell is also one of the state’s most influential lobbyists. He has since been term-limited off the Commission, but it would be hard to imagine that the interests of Lyell’s clients didn’t influence his judicial recommendations.[2]
The case, Johnson v. Bredesen is pending in U.S. District Court.
Arguments against re-authorization
Provisions of the Tennessee Plan were set to expire in 2008 unless reauthorized by the Tennessee Legislature.[3] There are strong arguments for letting the entire Plan expire:
- At the time the current constitutional provision was written in 1870, the idea of a retention referendum for public officials was unknown in the United States. Thus, it was impossible for the authors of the Constitution to have intended such a device when they required all judges to be "elected by the qualified voters" of the state. This answers supporters of retention elections who argue that this is method is consistent with the constitution.
- Although the Tennessee Plan might produce judges who are more independent from the public, it may do so only by producing judges who are more dependent on the special lawyer's organizations that control the list of nominations from which the Governor must appoint the judges. This answers supporters of the "merit system" who argue that partisan elections aren't as effective as the "merit system" at creating an independent judiciary.
External links
References
- ↑ TCPR article on the Tennessee Plan
- ↑ Tennessee Plan Puts Politics Before the Constitution
- ↑ [www.fed-soc.org/doclib/20080225_reauthorizationoftennesseeplan.pdf Fitzpatrick, Brian A Report on Reauthorization of the Tennessee Plan]
Portions of this article were taken from Wikipedia, the free encyclopedia.
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