The Tennessee Plan, based on the use of a Judicial Selection Commission to recommend appeals-court judges, has expired pursuant to our state's "sunset" laws. Unless replaced or reinstated, Tennessee will have no statutory method by which to select its judges. Also under review is the process of "yes-no" retention elections for sitting members of the appellate bench. The General Assembly must address both these issues this year.
While good grounds exist to dispense with the Judicial Selection Commission, let's not throw the baby out with the bath water. Retention elections are markedly superior to the popularly contested partisan elections envisioned by the critics.
Such elections are wrong on both philosophical and practical grounds.
Elections are no panaceas. The Founding Fathers understood this. That is why of all the components of the federal government, only the House of Representatives was created as a body directly elected by the people. The Senate was originally chosen by the state legislatures; the president by the Electoral College; and the judiciary by appointment.
There was a sound reason for this. Under a theory of separation of powers, it is appropriate that each branch of government be selected under a different method. Or to put it the other way, it would be inappropriate for all branches to be elected by the same means. This would erode the very separateness with which they are endowed and which is a bulwark of freedom. It would enable a single wave of popular passion to sweep away all branches of government together.
Judicial elections came into being in the mid-19th century as one of the excesses of Jacksonian democracy. Andrew Jackson had disdain for the judicial process, as evidence by his response to the Supreme Court's decision in Worcester v. Georgia: "Justice Marshall has made his decision; now let him enforce it." We should not rely on a methodology which is reflective of Jacksonian contempt for the rule of law.
Furthermore, a branch that is supposed to interpret the law should be selected by a means different from that for the branch that is supposed to make the law. One of the reasons we are having this debate is that a large section of the judiciary has overstepped its bounds and is, in fact, making law. Therefore, it is argued, judges should be selected by the means appropriate to those who make law. But that turns logic and principle on its head. If we believe that judges should not make law, we must select them by a method appropriate to their station — which is something other than election.
Practically, elections are problematic.The campaign world is no place for a judge. Traditionally, judges were restricted to making campaign statements limited to pledging to dispense justice fairly and impartially. Recent Supreme Court decisions now permit judicial candidates to go much further. Do we really want judges to run on promises of rulings on specific issues — such as abortion, gay rights, or a state income tax?
The cost of such elections generates more problems. It takes about $2 million right now to create sufficient name recognition to win a statewide race in Tennessee. There are 24 appellate judges and five Supreme Court justices. That means that we have the potential for 29 judges with 29 opponents all trying to raise $2 million. That's a total of $116 million. The source of such money will be people who want certain outcomes from the judiciary — they may be left or they may be right, but they want a result. They are not going to be giving because of their high-minded devotion to fair and impartial justice.
This brings us to the Caperton case, recently argued before the U.S. Supreme Court. A $50 million dollar fraud judgment had been rendered against Massey Coal Company in West Virginia. As the case made its way through the appellate process, Massey's owner contributed some $3 million in the state's ongoing Supreme Court race. The beneficiary was one Brent Benjamin, who won his race and was seated when Massey's appeal reached the West Virginia Supreme Court. Justice Benjamin not only did not recuse himself, he provided the deciding vote, overturning the verdict against Massey.
There are a number of proposals before the legislature. Whichever proposal is adopted, a key element should be the continuation of retention elections.
John Ryder is a Memphis lawyer who, as a Republican national committeeman, both studies and practices practical politics.