Contested Elections as Secret Weapon: Legislative Control over Judicial Decision-Making

Article excerpt

I. INTRODUCTION

What does a battle over contested election of judges look like? In Tennessee, it has taken the form of a battle over summary judgment. Since 1971, Tennessee has chosen its appellate judges through merit selection. (1) Pursuant to the "Tennessee Plan," vacancies on the appellate bench are filled by a process of application by interested lawyers, nomination of three candidates by the Judicial Nominating Commission, appointment by the governor, evaluation by the Judicial Evaluation Commission, and retention by the voters every eight years thereafter. (2) In these retention elections, voters vote "yes" or "no" on the question: "Shall (Name of Candidate) be retained or replaced in office as a Judge of the (Name of Court)?" (3) Because the Tennessee Constitution has provided since 1835 that "Judges of the Supreme Court shall be elected by the qualified voters of the State," (4) critics of the Tennessee Plan have argued that retention elections are unconstitutional, and that only contested elections can satisfy the constitutional mandate. (5)

Because the legislation authorizing the Judicial Nominating Commission and the Judicial Evaluation Commission expired on June 30, 2008, (6) proponents of contested judicial elections began agitating for legislation establishing judicial elections or, in the alternative, an amendment to the Tennessee Constitution to provide for retention elections. (7) In 2009, however, the Tennessee General Assembly passed legislation extending the Tennessee Plan until June 30, 2012. (8) With the Tennessee Plan again set to expire, the debate over contested elections has begun anew, but with an additional twist: In January 2011, for the first time since Reconstruction, the Tennessee General Assembly convened in Nashville with a Republican majority in both houses. (9) Indeed, early in the session, a bill was introduced to abolish the Tennessee Plan and institute contested elections for all appellate judges. (10) The Lieutenant Governor and Speaker of the Senate, Senator Ron Ramsey, proposed a constitutional amendment to "legitimize" the Tennessee Plan, fearing the repercussions of "high-spending political contests" for judges. (11) Ramsey's proposal was supported by both Tennessee Governor Bill Haslam, also a Republican, and House Speaker Beth Harwell. (12) However, Republican legislators broke with their leadership to pass a resolution in support of a constitutional amendment combining the federal advise-and-consent model for nominating judges with the current system of judicial retention elections. (13) Supporters of the current system have expressed concern that the constitutional amendment route is simply "a back door way to bring on popular election of judges." (14)

But the battle over contested election for appellate judges cannot be evaluated in a vacuum. In Tennessee, the issue of contested elections is part of a much larger issue: legislative power over the judiciary. Ironically, when Tennessee entered the union in 1796, its constitution called for complete legislative control over the judiciary, including election of all judges "by joint ballot of the two houses of the General Assembly." (15) Legislative power over the judiciary gradually eroded (16) until, in 1978, the General Assembly passed a comprehensive reform package which reorganized the Tennessee trial courts and granted the supreme court greater rulemaking power. (17) But with the advent of the Republican-controlled General Assembly, challenges have been raised to the supreme court's power to appoint the Attorney General (18) and to the operation of the Court of the Judiciary, the disciplinary body that oversees all Tennessee judges, a majority of whose members are appointed by the Tennessee Supreme Court. (19) This makes Tennessee one among many states in which the legislature has openly challenged the power of the judiciary. (20)

An additional line of attack has been opened on individual rulings of the supreme court. …