ABOUT THIS SERIESStories on the four constitutional amendments Tennessee voters will decide on Nov. 4 are the work of the Tennessee News Network, a consortium of the state's largest newspapers. Journalists from the Chattanooga Times Free Press, the Memphis Commercial Appeal, the Knoxville News Sentinel and The Tennessean in Nashville reported, wrote and edited the stories.SUNDAY• Amendment 1: Concerning abortionsMONDAY• Amendment 2: Concerning judicial electionsTUESDAY• Amendment 3: Concerning a ban on a state income taxWEDNESDAY• Amendment 4: Concerning lotteriesTEXT OF AMENDMENT 2Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.
By Tom Humphrey
NASHVILLE -- After decades of contentious arguing among lawyers and politicians over the best way to choose Tennessee's top judges, voters are being asked to resolve the issue once and for all this fall.
The request to voters comes in the form of Amendment 2 on the Nov. 4 ballot, a proposal drafted in the state Legislature and approved for submission to the public as a referendum by large and bipartisan majorities in the House and Senate.
The "Vote Yes on 2" campaign is a well-financed and well-organized effort led by Republican Gov. Bill Haslam and his Democratic predecessor, Phil Bredesen. The "Vote No on 2" campaign has very little financing and is led by a group of populist activists, including a trio of state legislators, who contend the proposal is designed to dupe voters into giving up their right to elect judges.
In essence, the Vote Yes on 2 campaign asks voters to officially accept the judicial selection system for 29 state appellate court judges that is already in place -- by statute, but not in the state Constitution -- with one modification.
Today, the judicial positions are initially filled by statute through gubernatorial appointment, with voters later given the opportunity to grant or deny a new term to each appointed judge in a retention election. Amendment 2 retains that process and adds a requirement that the Legislature confirm the governor's appointees on the front end, similar to the federal system for appointing judges wherein the U.S. Senate must approve presidential appointments.
Amendment 2 provides that if the Legislature does not act to confirm one way or the other within 60 days, the governor's appointment is automatically confirmed. If the Legislature is not in session when the governor makes an appointment, the judge takes office anyway, and the meter on the 60-day period -- giving legislators a chance to reject -- begins when the Legislature comes back into session.
"It's the best of both worlds," said Supreme Court Justice Holly Kirby during a Nashville presentation last week, referring to the current state "merit selection" system and the federal system. "It is a balancing of accountability [to voters] and independence [of the judiciary]."
All five current Supreme Court justices -- and all the other 24 appellate court judges who have voiced a public opinion -- staunchly support Amendment 2. Kirby and Justice Jeff Bivins, both Haslam appointees who took office Sept. 1, face their first retention election in 2016 under the current system. The three other Supreme Court justices -- Sharon Lee, Connie Clark and Gary Wade -- were appointed by Bredesen and got new terms in this year's Aug. 7 retention election despite an effort to unseat them by conservative Republican activists, led by Lt. Gov. Ron Ramsey.
CONTENTIOUS HISTORY
The retention election system was instituted in 1971 and applied only to the Court of Appeals and the Court of Criminal Appeals. That came when Democrats controlled the Legislature and Winfield Dunn had been elected the state's first Republican governor in a half-century.
Lawsuits challenging the system started then. They continued after the Supreme Court justices were added to the retention election system in 1994. And they continue today -- most recently with a decision in March of this year by a specially appointed Supreme Court in the latest challenge brought by John Jay Hooker, an 84-year-old Nashville lawyer. Special Supreme Courts, appointed by the governor, take over cases when the standing court faces a conflict of interest -- as the justices, all appointed under the current system, agreed they did in this year's case and others.
The special courts have uniformly ruled that the retention election system does not violate the state's current constitutional provision. Hooker, who is on the ballot as an independent candidate for governor this year and who was the Democratic nominee for governor in 1970 and 1994, says those rulings in conjunction with the Legislature-approved statutes constitute "the greatest fraud that has ever been perpetuated on the people of Tennessee by those who are supposed to represent them and have taken an oath to follow our state constitution."
Article VI, Section 3 of the state Constitution, a provision dating to 1870, now says that Supreme Court judges "shall be elected by the qualified voters of the state." That would be repealed by Amendment 2 and replaced by a clear authorization for gubernatorial appointment -- with legislative confirmation -- and retention elections.
John Avery Emison, state coordinator of Vote No on 2, echoes Hooker's sentiments. Amendment 2, he said in an interview, effectively asks that voters "provide political cover for a system that almost everybody knows is unconstitutional right now" and surrender their voting rights to the governor.
Some supporters of Amendment 2 -- notably including Ramsey -- agree that the present system appears to violate the current constitution's mandate for choosing judges by a straightforward contested election despite all the special Supreme Court opinions. The proposed amendment, they say, provides a constitutionally approved method for putting into place a better system of distancing judges from political fundraising and becoming beholden to donors when making legal decisions.
MISGIVINGS
But while proponents of Amendment 2 contend passage will ensure non-partisanship and independence of the judiciary, Emison argues that recent developments illustrate the opposite is true. In the August retention election, partisanship was injected along with "all the special interest money" -- from both inside and outside the state -- that proponents of the amendment proclaim a danger in contested judicial elections, he said.
Amendment 2 critics also say the Supreme Court's post-election decision to jettison Democratic Attorney General Bob Cooper and replace him with Republican Herbert Slatery, Haslam's legal counsel, has strong political overtones, undermining the argument that the present system promotes judicial bipartisanship and independence. State House Democratic Leader Craig Fitzhugh, while saying he has committed to backing Amendment 2 and stands by that decision, thinks the rejection of Cooper "simply because he is a Democrat" has created misgivings.
Not so, said Justice Bivins in a brief interview last week. The August retention election, he said, showed that voters overall reject a push to make partisanship an issue and further illustrated that retention elections are a valid exercise of voter rights. As for the collective spending of well over $1 million by both sides in the retention campaign, Bivins said that "is a microcosm of what would happen if we went to direct partisan races." Such contested statewide elections, could easily reach the $8 million to $10 million range, he said.
U.S. Sen. Lamar Alexander has spent more than $6 million in his statewide Republican primary election campaign this year with the general election campaign still underway.
Bivins also said the selection of Slatery as attorney general also showed three identifiable Democrats and two identifiable Republicans uniting behind a single candidate and, "That sounds about as bipartisan as you can get to me."
While approval of the amendment would resolve a long-running dispute, defeat would continue it.
Emison said legislators should feel obliged to restore contested elections for appellate judges if the amendment loses. But he noted that voters in 1978 rejected a similar constitutional amendment proposal and the Legislature nonetheless continued to keep the gubernatorial appointment system in place.
Tom Humphrey is retired News Sentinel Nashville bureau chief and a freelance contributor.