Every four years, those Hamilton County residents that bother to vote head to the precinct, grab the ballot, walk over to the booth, and after choosing among familiar candidates whose signs and TV ads have littered public life, sit there staring at a lengthy list of questions starting with the word "shall" and bearing names they've hardly, if ever, seen. Underneath each question is an option to vote "Yes" or "No." What kind of election is this?
Why, it's the system some say was put in place to barely squeak by a constitutional requirement that Tennessee's appellate judiciary be elected by the people. Judges on the state's Court of Appeals, Court of Criminal Appeals, and Supreme Court are first nominated by the seventeen-member Judicial Selection Commission and then confirmed by the governor. The first time the public are invited to participate in the election process is eight years later, when each judge's name is placed on the ballot and voters give them the basic up-or-down. No appellate judge faces an election opponent. There is a Judicial Evaluation Commission (not to be confused with the Judicial Selection Commission) that is charged with making recommendations to the public when, every eight years, a sitting judge intends to seek retention. I'm sure Chattarati's savvy readers saw the publication of these recommendations a few weeks back, and are thus armed with all the information they need to decide; but it is fair to say that a great many missed the message. I will make it easy on those who forgot their homework: every judge up for a retention vote was recommended unanimously (with the occasional abstention) by the committee. (That right there should set off an alarm. It's not mathematically reasonable, is it?) Proponents of the so-called "Tennessee Plan" contend that it secludes the judiciary from gritty, partisan politics while keeping the letter of the law with regard to the people's involvement. Since appeals will be heard on an unknown variety of lower court cases, the idea is not to have judges to feel indebted to any party or special interest when issuing opinions. We only need to look as far away as Alabama to see how an elected upper judiciary can invite firebrands and demagogues into the mix. Partisanship is bound to ensue in any way it can, though, and indeed it has. Critics of this system skew heavily Republican, and its principal defenders are correspondingly of the Democratic Party. (In fairness, though, most people don't have an opinion, from what I gather.) Former state Senator David Fowler, who now heads a socially conservative political action group, dedicated an entire issue of his newsletter to decrying this method of choosing appellate judges. Now, to the most confusing part. The Volunteer State can in many ways be considered as three separate jurisdictions under one state flag. I don't know of another state like this. The outcome is that judges are appointed to preside in a particular Grand Division; yet voters statewide engage in the retention process. So, you will be voting to retain (or not) judges on the Court of Appeals that are assigned to the Middle and West divisions, while voters in Martin and Lawrenceburg will be making decisions about two Court of Criminal Appeals judges whose bench is the East. And then there is the mysterious element: the makeup of the Judicial Selection Commission, the aforementioned gang of seventeen that winnows applicants for each court vacancy down to three names, and sends those three to the sitting governor. Who decides its members? And likewise of the Judicial Evaluation Commission? If you have knowledge to share, leave a comment. We'd also love to hear your thoughts on whether appellate judges in this state should be popularly elected, or should go through a nomination-and-confirmation process à la the federal judiciary, or the current system should be kept intact; or, for that matter, if you propose an alternative to all three. UPDATE: See also veteran political journalist Tom Humphrey's story in today's Knoxville News-Sentinel. (HT: Post Politics)
Joe Lance
davidm. on July 30, 2008
Seems like an incredibly convoluted system. I'm particularly baffled by how we vote on judges in the Middle/West and not our own. If you're going to politicize the judiciary through an election, why not keep it native and reflective of a particular region's standards, morality, etc.?
Great article, though.
joe lance on July 30, 2008
To be clear, all voters, statewide, vote on judges in all divisions. So we will vote on the two East Division Court of Criminal Appeals judges as well as the three Middle and West Divisions' Court of Appeals judges.
But to me that's sort of like if one lived here but voted in the 8th or 9th District U.S. House race. I'm not sure, but I wouldn't think that a judge in one of the other Grand Divisions would hear an appeal on a case that arose from this Grand Division, and likewise with the other two. I could be mistaken.
Bottom line, many people either skip this part of the ballot or mark ovals with no idea why.