Friday, March 02, 2007

Real judicial review

The Tennessee Judicial Selection Commission is now set to offer Governor Phil Bredesen a fresh set of applicants for the vacant seat on the Tennessee Supreme Court. This comes after Bredesen rejected the panel's initial offering of candidates because none of the candidates was an African-American. The Governor has made it clear that he wants to replace the high court's only black Justice, Adolpho A. Birch, Jr., (who is a former Chief Justice) with another minority candidate.

Under the Tennessee Plan for Judicial Selection (also called the Modified Missouri Plan), Justices of the Supreme Court are appointed by the Governor on the recommendation of the Tennessee Judicial Selection Commission. Justices are ratified in their position via Yes/No referenda which occur every eight years. Under this plan, the people of Tennessee do not directly elect their judges, a fact which some have said violates the State Constitution, since a Yes-No vote on judges the voters barely know does not actually constitute an election.

I do not really have a problem with the fact that our judges are not directly elected, since most voters do not cast an informed vote on judges in the first place, but in the case of Bredesen, he has rejected qualified applicants for the Birch vacancy for no other reason than the fact that they were white. While I understand Bredesen's symbolic desire to replace the first black justice with another minority candidate, what many do not understand about Tennessee's judicial selection process is that the Governor is legally bound to appoint justices in a certain fashion. He may not replace a Justice from West Tennessee with one from East Tennessee, or a Middle Tennessee Justice with a West Tennessean. Our Supreme Court is legally and constitutionally designed to prevent regional bias. It does not meet only in Nashville, for example, but also has meetings of the Court in Knoxville (East Tennessee) and Jackson (West Tennessee).

(Those in the Knoxville area may or may not be aware that the Tennessee Supreme Court building is to be found on Main Street across from the Knox City-County building, and is housed in the old federal courthouse. When the Court sits there, you can attend a session).

Because the Governor must appoint representatives on the Court from each Grand Division of Tennessee, he is bound to replace Justice Birch with someone from Middle or West Tennessee because the Court has two East Tennessee Justices. The only minority candidate that the Judicial Selection Commission recommended to Bredesen as fully qualified withdrew his own nomination, so the Commission submitted a list of qualified candidates without regard to the issue of race. Bredesen rejected the entire slate, his only reasoning being that there was no minority candidate on the list.

With good reason, the rejected candidates (particularly Covington attorney J. Houston Gordon) felt slighted, as did the Commission, and this led to the case Bredesen v. Tennessee Judicial Selection Commission, in which the Tennessee Supreme Court ruled that Bredesen may reject whom he chooses and that none of the rejected candidates may be renominated by the Commission. The ruling also sets the precedent of giving the Governor carte blanche in the appointment process. He may accept or reject who he will with little or no real oversight. My friend Mike Faulk was correct back in January when he rightly pointed out that this has been a power struggle between Bredesen and House Speaker Jimmy Naifeh, a Democrat, and was inherited by Republican Lieutenant Governor Ron Ramsey from his Democratic predecessor John Wilder. The Lt. Governor (Speaker of the Senate) and Speaker of the House are the officials responsible for appointing members of the Judicial Selection Commission. I do not believe that this is enough oversight over the judicial appointment process, however

I propose that we amend the Tennessee Constitution and create that judicial review by constitutionally mandating that any State judge nominated by the Judicial Selection Commission and appointed by the Governor must be confirmed by a majority vote of the State Senate, and that any Supreme Court Justice appointed by the same process be subject to approval by a 3/5ths vote of the State Senate, or 20 votes out of 33.

It is time to give the General Assembly some serious judicial review.



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