Tennessee, Ending Merit Selection, to Enter Period of Uncertainty

Because of controversy over the best way to select top judges, Tennessee will soon enter a period without a mechanism for replacing jurists who quit or retire, some state lawyers say. An Associated Press article recaps the situation and reports differing views about what may happen.

Tennessee’s legislature recently completed its work without extending the life of the state’s Judicial Nominating Commission, which now is set to go out of business after June 30 (see Gavel Grab). Next year, voters will be asked to approve or reject a proposed constitutional amendment to give the governor unilateral power to pick judges, subject to confirmation by the legislature.

“It makes for a complicated mess, although we’ve heard the distinct possibility that something will be done early in the next legislative session” said Tom Lawless, who chairs the Judicial Nominating Commission.

Tennessee Supreme Court Chief Justice Gary Wade said no appellate judges plan to retire before the next retention (up-or-down) judicial election, set for August 2014. With help from senior judges and other trial judges, he said, “[W]e 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” at the trial level.

Justice at Stake has warned that eliminating the merit-based judicial screening panel and replacing it with a Washington, D.C.-style system would “inject partisan politics into the state’s judicial selection process.”

The Associated Press quoted Republican Lew Conner, who was recommended for a Court of Appeals judgeship by a Democratic-dominated commission, defended the state’s merit-based selection system as preventing money from contaminating judicial selection. An opposing view came from Vanderbilt Law professor Brian Fitzpatrick, who said judicial selection will be political “no matter what.”

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