|Unusually, Tennessee holds its state primary on a Thursday and that just happens to be tomorrow. Over the summer, I’ve been doing my best to educate voters over talk radio, in speeches to community groups, and writing. The text below, a version of which was published in the Chattanoogan suggesting that Tennessee’s liberal judiciary may soon be singing the blues, is a good (but certainly not exhaustive) summary of the situation in Tennessee and what folks should know.
Undesirable, Unconstitutional, and Unaccountable
For just over four decades, Tennessee judges have been selected through a scheme that is undesirable, unconstitutional, and unaccountable. The contrivance was conceived by a Democrat legislature desperate to build a firewall around the judiciary as Republicans made political gains, and has since been dominated by special interests working their own ends.
The result has been a predictable sea change in jurisprudence: the new faction of judicial elites made the buckle of the Bible Belt an abortion destination, coddled callous criminals, and paved the way for an income tax – all defects opponents hope to resolve in judicial elections in August and otherwise unnecessary constitutional amendments in November.
But once upon a time, Tennessee’s government was limited by its constitution rather than the admittedly creative imagination of our judges. Written in 1870, our constitution contains no abortion reference discernible to the average reader, and previous iterations of our courts were deferential to the legislature, enforced the death penalty, and even found wage and price controls unconstitutional. Opposing civil rights was their biggest blemish, though one shared by courts across the country.
The Tennessee Constitution also plainly states, “The Judges of the Supreme Court shall be elected by the qualified voters of the State.” For its first century, the clause was interpreted as you might expect: Joe ran against John in a partisan, contested election. If a judge were to step down midterm, the Governor would appoint his replacement. Unique to Tennessee, the Supreme Court would then select our Attorney General.
In 1970, Tennesseans elected Winfield Dunn, our first Republican Governor in 50 years. As our current Democrat Attorney General has related, the Democrat legislature at the time borrowed a scheme from Missouri in order to prevent Republicans from gaining a majority on the court – or the Attorney General’s office.
The plot mandated by statute that a “nominating commission” of legal pooh-bahs representing liberal special interest groups present the Governor with three options from which he must choose his appointment. For most of the last decade, including for all current members of the Supreme Court, the junta included a mandatory quota selected by the local trial lawyers guild.
Further, the plan controversially redefined “elect” to ensure that the judges they put on the court would never face human competition, and instead faced merely a question of whether to be retained. No such “election” existed in the United States in 1870, and it’s thus a hard sell that the framers– or the voters who authorized the Constitution- conceived of that prospect. Scholars like Vanderbilt Law professor Brian Fitzpatrick have concluded that unanswered questions from legal challenges “comprise a compelling case for the view that many appellate judges in Tennessee have been selected in an unconstitutional manner for the better part of four decades.”
Our judiciary was designed to be a democracy but what we got is a hypocrisy. Our current judges are in the strange position of legally equating the retention election they face with a genuine contested election while simultaneously insisting that the election should involve no politics (and no opposition).
But Tennesseans should know that the system has been rigged to produce partisan Democrat majorities on the courts. Initially, that meant a dramatic “modernization” of the court’s jurisprudence. One Supreme Court justice observed, “Those of us on the 74 court felt that we had to make up for 100 years of not bringing law up to date.” And the court kept moving left, expanding the practice of trial lawyers, appointing Attorneys General who explored the legality of an income tax, barely enforcing the death penalty, and becoming one of 16 states to discover a right to abortion independent of the US Constitution.
Today’s court has a majority of Democrats screened by the scheme and appointed by a Democrat governor to whom they each gave thousands of dollars. They appointed the Tennessee Democrat Party’s legal counsel to be Attorney General (who subsequently declined to challenge ObamaCare). And, amidst support from trial lawyers, they’ve hired alumni of Barack Obama’s campaigns to run their own. They are, in other words, natural products of the scheme.
But the scheme itself could end in November, when the constitutional amendment to change the way we select our judges faces the people. The amendment, inspired by the Founding Fathers, would have the Governor nominate and the legislature confirm judges. It was supported by a bipartisan super-majority of the legislature and has been endorsed by legal, business, and community groups. Its challenge will be crossing the high threshold for the last step of changing the Tennessee constitution: getting over 50% of the votes cast for Governor, which may be particularly difficult if Tennesseans conclude that we simply ought follow the prescription offered by our original constitution.
Either way, the days of unconstitutional judicial selection in Tennessee are numbered.
(A version of this text was published in the Chattanoogan)