NASHVILLE — When the Legislature failed to extend the life of the Judicial Nominating Commission, it effectively ended merit-based selection of judges in Tennessee. It also left open the question of whether there is any mechanism to replace a Tennessee judge who steps down, retires or dies.
Voters will decide in November 2014 whether they want to amend the state constitution to change the way judges are chosen in Tennessee. The amendment would give the governor the right to appoint appellate court judges, including those who sit on the Tennessee Supreme Court, followed by confirmation of the Legislature.
Some lawyers warn the Legislature has left Tennessee without a way to pick judges before voters go to the polls next year because the commission that is set to expire June 30 currently helps the governor select judges.
The commission was extremely unpopular among some lawmakers who believe judges ought to be elected or just didn't like the idea of commissioners having a say in who gets to be a judge.
By failing to extend the life of the Judicial Nominating Commission, the Legislature has left no mechanism in place for replacing judges who step down or retire, said Allan Ramsaur, executive director of the Tennessee Bar Association.
"It makes for a complicated mess, although we're heard the distinct possibility that something will be done early in the next legislative session" said Tom Lawless, a Nashville lawyer who is chair of the soon-to-be-defunct Judicial Nominating Commission.
Lawless said that without legislative intervention, there is potentially 19 months of no mechanism of replacement of judges in Tennessee.
Tennessee's current method of selecting judges has been extremely controversial. It has especially rankled some conservatives who believe that all judges, even those who sit on the appellate courts, should face popular elections with opponents.
Currently, the Judicial Nominating Commission — composed of lawyers and laypeople — interviews attorneys who apply to fill a vacancy, holds public hearings and then picks three names to give to the governor so he can select one. After appointment, trial court judges then face an election and will have an opponent if someone decides to run against the sitting judge. But appellate court judges face retention elections where citizens vote 'yes' or 'no' on whether they serve an additional eight-year term.
The Legislature also did not extend the life of the Tennessee Judicial Performance Evaluation Commission, which decides whether to recommend an appellate court judge for retention. However, it won't expire until after it has had a chance to evaluate all the appellate court judges who will face retention elections next year.
Others have said that Tennessee's current method of selecting judges using the Judicial Nominating Commission to help the governor pick, known as the Tennessee Plan, is the best way to keep the politics out.
Lew Conner, who is a Republican, said the commission that recommended him for a seat on the Tennessee Court of Appeals was one stacked overwhelmingly with Democrats. He said the same commission also picked another Republican to recommend for a judgeship.
"This was the leadership of the commission, and what they decided is what every commission since then has decided — to make the selection based on merit, pure and simple," Conner said.
He said the merit system helps keep money from poisoning judicial races.
But others say that there is no evidence that Tennessee's use of the commission is any less political.
"It's going to be political no matter what," Brian Fitzpatrick, a law professor at Vanderbilt Law School. "The question is whose politics is going to drive it." The commissioners, he said, are not elected. But people do know the governor's politics, and because he is elected he has more political legitimacy.
Fitzpatrick also disputes the notion that merit-based selection actually produces a better quality of judges. He says studies have shown that judges who aren't picked on the so-called merit selection process are any more qualified.
He said there is a question about whether there is a way to replace a trial court judge after the nominating commission expires. However, he said anyone lawyer wanting to fill that slot would simply run in an election. Fitzpatrick thinks, however, that the current law would allow the governor to outright appoint someone to sit on an appellate court.
In the meantime, court officials say they can use special judges to cover for any vacancies in the trial courts and they don't expect anyone on the appellate courts to step down before the next election.
"With the help of our senior judges and other trial judges willing to work even more, we should be able to cover any illnesses or unexpected deaths throughout the remainder of the term — without any undue delay to the litigants and their attorneys," Tennessee Supreme Court Chief Justice Gary Wade said in an email to The Associated Press.
"None of our 29 appellate judges plan to retire before Aug. 31, 2014. So there should be no slowdown for the remainder of the term," Wade added.