Friday, June 12, 2009

Follow the Constitution, Don't Ignore It

Under normal circumstances, I find that I usually agree with Knoxville News-Sentinel columnist Greg Johnson. However, issue must be taken with Johnson's position on judicial selection:

A compromise plan sponsored by Sen. Jamie Woodson, R-Knoxville, Sen. Doug Overbey, R-Maryville, and Rep. Joe McCord, R-Maryville, (with others) creates a judicial nomination commission and allows the speakers much more leeway by removing special interests from the process. The majority of members on the nomination commission will be lawyers, assuring input from those who best know the needs of the courts. The governor will still make appointments, and appellate judges will still stand for retention election.

Some Republicans called for direct election which, as Caperton shows, could be fraught with peril. Most Democrats advocated maintaining the impossibly politicized status quo. Neither side got its way. Neither side is likely satisfied.

Which probably means the new plan is just right.

In the same column, Johnson says that the Tennessee Constitution "calls for" direct election of appellate judges. The Constitution does not call for direct election, it requires it.

Article VI, Sec. 3:

The Judges of the Supreme Court shall be elected by the qualified voters of the State. The Legislature shall have power to prescribe such rules as may be necessary to carry out the provisions of section two of this article. Every Judge of the Supreme Court shall be thirty-five years of age, and shall before his election have been a resident of the State for five years. His term of service shall be eight years.

Article VI, Sec. 4:

The Judges of the Circuit and Chancery Courts, and of other inferior Courts, shall be elected by the qualified voters of the district or circuit to which they are to be assigned. Every Judge of such Courts shall be thirty years of age, and shall before his election, have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years.
Johnson's arguments as they relate to Caperton v. Massey do indeed have some (not complete-Roberts and Scalia wrote very good dissents) merit, but Greg Johnson seems to fall (perhaps unknowingly) for the usually Left-of-center judicial error that one can preserve constitutional law by going above and beyond the Constitution. This is an extremely dangerous mentality that must be avoided at all costs, and a view which must be wholly rejected. The only way to resolve the issue of whether judicial election might lead to conflicts of interest is to amend the Constitution, not to operate beyond it.

In addition, the new Judicial Selection Commission will still be dominated by lawyers, and so long as that is the case, the long arm of the "Tennessee Association for Justice" will never be completely avoided. The TAJ is formerly known as the Tennessee Trial Lawyers' Association, and many (if not most) trial lawyers in Tennessee are members of it or are somehow associated with it. Lawyers have their own self-interest to be concerned with and will be inclined to choose judges who reflect their judicial philosophy, and for most trial lawyers, that isn't a conservative one. In an effort to free the selection of judges from bias, the General Assembly has made the selection of judges largely dependent on biased attorneys.

The Constitution requires that appellate judges be elected, and until the Tennessee Constitution is amended it ought to be followed, especially since legislators swear an oath to uphold it. If the Constitution is modified to allow for appointed appellate judges, the judges should not be appointed by the Governor on the advice of a commission of lawyers, but nominated by the Governor and confirmed or rejected (complete with confimation hearings) by one or both Houses of the General Assembly.



At Friday, June 12, 2009 10:11:00 PM, Anonymous Anonymous said...

We just rolled over on the budget. how can we even think about electing judges. We lack the courage to accomplish anything meaningful. The hated dems at least have the courage to stand up and fight for what they believe in.We need some primary challengers to these gutless republicans that we have representing us.

At Saturday, June 13, 2009 6:55:00 PM, Anonymous Anonymous said...

Buzzzzzz! Wrong again! Would you like one more chance or should we give you your usual "F"?


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