Blue Collar Muse

“Constitution” is defined as “The way in which a thing is composed or made up” and “The physical character of the body as to strength, health, etc …” before it is defined as “The system of fundamental principles according to which a nation, state, corporation, or the like, is governed.” That’s appropriate since the third definition is amplified by the first two. Our Constitution is more than the principles by which we are governed. It lists things we believe important for our composition and describes what we believe makes us strong.

Politically, few things more important to a state than its Constitution. That’s why it is harder to amend it than it is to pass new laws. There should be broad support and a sense of urgency from the people to amend a Constitution. Amending one alters the fabric of the society governed by it. It is not merely a change for a people, it redefines what it means to be part of the people. Which brings us to Tennessee.

To seat Supreme Court and Intermediate Appellate Court judges, the current practice, known as the Tennessee Plan, is for a Commission to submit a slate of names to the Governor who appoints a judge from the list to fill a vacant seat. That judge serves until his term expires and then faces a “retention” vote. Retention votes are different than votes we usually cast. They are not a choice between Candidate A and Candidate B with the winner being the one getting the most votes. Retention votes for judges have a “Yes” or “No” choice where “Yes” means the judge should be retained as a judge and “No” means he should not be retained. If a judge is not retained, the Governor appoints another judge recommended by the Commission who serves until he faces a retention vote of his own.

What does this have to do with the Constitution? As a method for seating judges, The Tennessee Plan may have any number of positives. But it has a singular, glaring flaw. It violates Tennessee’s Constitution. Here is the Constitution’s language from Article VI, Section 3 regarding Supreme Court judges:

The judges of the Supreme Court shall be elected by the qualified voters of the state.

From Article 6, section 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.

For those arguing a retention vote fulfills these constitutional requirements, a little comparison is in order. Regarding certain Legislative vacancies Article 2, Section 15(a) requires:

When twelve months or more remain prior to the next general election for legislators, a successor shall be elected by the qualified voters of the district represented …”

For State’s Attornies from Article 6, Section 5:

An attorney for the state for any circuit or district, for which a judge having criminal jurisdiction shall be provided by law, shall be elected by the qualified voters of such circuit or district …

For certain Court Clerks from Article 6, Section 13:

Clerks of the Inferior Courts holden in the respective counties or districts, shall be elected by the qualified voters thereof …

The phrase “shall be elected by the qualified voters” appears 5 times in Tennessee’s Constitution. If retention votes are valid, why is only the Supreme Court involved? Where did the authority to subject Appellate Court judges, and no other non-Supreme Court judges, to retention? Why are the other offices not open to retention votes? In short, the language is identical, so what was the reasoning for choosing two specific judicial elections to alter after 100 years of things working just fine? Further, in 1870 when our current Constitution was ratified, the idea of a “retention vote” did not exist. The only election with meaning was a contested election. The idea and practice of The Tennessee Plan is unconstitutional.

That does not make it illegal in and of itself. It’s just not in the Constitution. Tennessee Plan supporters are free to propose amending the Constitution. As I mentioned, there may even be any number of good reasons for doing so. Good reasoning does not equate to Constitutionality. The Judicial Selection Commission expires, along with other aspects of The Tennessee Plan, at the end of June, 2009. It should be allowed to do so. The General Assembly will need to come up with an alternative. Keeping the Tennessee Plan and claiming, as some do, they stand for the rule of law is both illogical and hypocritical. Keeping the Tennessee Plan for any reason at all is unconstitutional.

Until an alternative is found, we have a perfectly acceptable method of seating judges that worked for 100 years. It’s called an election. By the qualified voters of of the state. For judges.

Abiding by the Constitution … what a radical concept …

Blue Collar Muse

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