More judicial accountability is welcome
Inscribed on the seal of the Tennessee judiciary is a Latin phrase that translates, “Let justice be done though the heavens fall.” Those who have heard recent statements emanating from Nashville might be forgiven for thinking the recent sunsetting of the Tennessee Judicial Nominating Commission may lead to exactly that — the heavens, or at least our state’s judiciary, falling. Instead, the noises are just the dying declarations of the members of an unelected and therefore unaccountable board decrying the loss of their privileged place in Tennessee’s judicial selection process.
For the average Tennessean, the commission’s demise is a welcome step toward creating a more transparent and politically accountable process for choosing Tennessee’s judges.
The Judicial Nominating Commission was composed of 17 members, mostly lawyers representing particular interest groups. These deeply interested individuals were responsible for selecting a list of nominees to fill judicial vacancies in Tennessee’s trial and appellate courts. The law required the governor to select one of the commission’s nominees.
As in any system that becomes captured by special interests, backroom political deals often governed the selection of nominees to the detriment of the interest of the average Tennessean in the fair and impartial administration of justice.
Though Republicans are now ascendant in Nashville, frustration with the commission is decidedly bipartisan. Democratic former governor Phil Bredesen had to take the commission to court after it tried to force him to appoint a nominee it favored but he did not. The result was a Tennessee Supreme Court opinion that found that the commission — a body charged with nominating those whose job it is to uphold the law — had itself acted illegally. Clearly, the system needs reform.
This past legislative session, the General Assembly proposed that reform. In 2014, Tennessee voters will go to the polls and decide whether to ratify a constitutional amendment changing Tennessee’s judicial selection process. Rather than using an unelected, lawyer-dominated commission to pick judges, Tennessee would use a system resembling the one set forth in the U. S. Constitution.
The governor would nominate individuals to fill judicial vacancies subject to confirmation by the legislature. Should the governor appoint and the legislature approve a dud, Tennesseans will retain the right to remove the judge at regularly scheduled elections.
And in an important improvement over the commission system, the governor and legislators, who are directly accountable to the voters, can likewise be voted out of office for their bad judgment. Previously, even if the voters removed a judge, they had no recourse against the errant commission. That same commission would choose the nominees to replace the ousted judge.
As part of the reform process, the legislature decided to allow the commission to expire. Mem- bers of the commission recently have suggested that the next legislative session should revisit this decision. They question how Tennessee will select its judges in the interim period before Tennesseans vote on the proposed constitutional amendment and suggest that only they can truly guarantee that merit is the prime consideration in judicial appointments. They are mistaken.
In 2009, Tennessee’s legislature amended the judicial selection law to provide that the governor can appoint judges if, for any reason, the commission is unable to provide a list of nominees.
Thus, as Vanderbilt law professor Brian Fitzpatrick has noted, there is little risk that judicial vacancies will go unfilled before the 2014 elections.
Nor are Tennesseans dependent on the commission to discover merit. The current judicial selec- tion process originated in the 1970s. Under the prior systems, which did not involve a commission acting as a filter, Tennessee’s judges have included multiple future members of the Supreme Court of the United States and a future president, Andrew Jackson. Whatever one may say about merit, the commission does not have a monopoly in finding it.
The commission may be gone, but the work of Tennessee’s judges will continue. The heavens are not falling, only the profiles of those 17 unelected individuals once charged with selecting them. The legislature should let the commission rest in peace. The next group allowed to speak in this debate should be the voters.