Tennessee voters to decide whether to keep merit selection for state's top judges

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NASHVILLE, Tennessee — Tennessee voters will begin casting ballots next week on whether to keep but modify the state's current method of selecting appeals judges and Supreme Court Justices.

Under the current system, the governor makes appointments to fill vacancies on the state's top courts. Voters then decide whether to keep or replace them in uncontested retention elections. A proposed constitutional amendment would add a provision to give the Legislature the power to reject the governor's nominees.

"We have to bring finality to this issue of selecting judges in Tennessee," said Senate Judiciary Chairman Brian Kelsey, R-Germantown, a supporter of the amendment.

Opponents of the current system argue the retention elections violate a provision in the Tennessee Constitution that says the Supreme Court justices "shall be elected by the qualified voters of the state," and dismiss various legal rulings supporting the current system as tainted because they were made by jurists who have a stake in the current system.

Supporters like Republican Gov. Bill Haslam and former Democratic Gov. Phil Bredesen call the system a way to advance the best candidates for the bench and to avoid overly political judicial elections involving head-to-head contests between candidates.

Haslam has argued that injecting legislative approval to the mix adds a layer of accountability, as voters would elect both the governor who nominates the judges and the legislators who would confirm or reject them.

Haslam and Bredesen have toured the state together and appear together in a television ad promoting the "Yes on 2" campaign.

Some observers fear that failure of the amendment would plunge the state's judicial system into uncertainty by giving rise to demands for an immediate return to the popular election of all judges in the state.

"If this amendment fails, we will be left in chaos in the Legislature," Kelsey said.

But views on the proposal remain divided, even among Republicans who hold large majorities in the Legislature.

Republican Senate Speaker Ron Ramsey, who bankrolled an unsuccessful effort to oust three Democratic justices in their August retention elections, said he only sees one outcome in the Legislature if voters don't approve the amendment.

"You would think that if this question failed that you'd go back to popular elections," Ramsey said. "I think any commonsensical kind of person would say that."

Senate Republican leader Mark Norris, a Collierville attorney, is among those sitting out the campaign on judicial selection. Norris had sponsored a separate proposal to give the Legislature blanket constitutional authority to determine how judges are selected. But that measure was abandoned in favor of the one going before voters next week.

Norris said that even if the amendment passes, it's unlikely to meet its objectives.

"It's not a panacea," Norris said. "For anyone to think inserting legislative approval will eliminate politics in the judiciary is foolish."

Tennessee appeals judges have been appointed by the governor since 1971, but Supreme Court justices weren't added to what is known as the Tennessee Plan for merit selection until 1994. Only one justice, Penny White, has lost a retention election since then.

Ramsey's bid to defeat one or all of the three Democratic justices this last summer led that race to become the most expensive judicial campaign in Tennessee history. Ramsey poured at least $425,000 from his political action committee into the efforts to oust Justices Gary Wade, Connie Clark and Sharon Lee in his failed effort to give Republicans control over the five-member high court.

The justices raised well over $1 million to fend off the challenge that featured heavy television adverting on both sides. Many of the justices' Democratic supporters were later disappointed when the high court named Herbert Slatery, the Republican governor's chief legal counsel, as the state's next attorney general.

Haslam, who remained neutral in the retention fight, expressed concern over the summer that the hard-fought election could "muddy the water" for Tennesseans over the merit selection campaign in the fall.

"That's our job, to hopefully get that message clear," he said.

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