Gee, who's picking the judges?

Whether or not you like Sarah Palin . . . regardless of your view on abortion . . . a commission-based system of picking judges--like we have in Tennessee, removes all accountability concerning who is seated on our courts. As the Washington Times reports ("State law gives Palin no choice but pro-choice"):

Alaska Gov. Sarah Palin had to make a tough choice in filling a vacant slot on her state's Supreme Court: Appoint a woman who once served on the board of Planned Parenthood, or risk giving an environmentalist lawyer, also pro-choice on abortion, the chance to become an activist judge.

Mrs. Palin, a pro-lifer who ran as the Republican vice presidential candidate last fall, rankled social conservatives by choosing Anchorage Superior Court Judge Morgan Christen, the woman with Planned Parenthood ties, over Eric Smith.

. . . .

[A pro-traditional-values critic of Palin] admitted, however, that Mrs. Palin was 'backed into a corner' by the state's system for selecting judges, known as the 'Missouri Plan.' Alaska's constitution requires an independent panel to vet and then submit choices to the governor when positions on the court open up. The only names the panel submitted for consideration were Judge Christen and Mr. Smith - neither an obvious conservative choice.

Proverbial wolves guarding the courthouse . . .

I would bet you haven't heard about the Hannan v. Alltel Publishing Co. case brought down from the mountain by the Tennessee Supreme Court on All Hallows Eve last year. That's certainly understandable, though it's regrettable, because it is a landmark state court ruling, and it will affect your life.

In sum, the court's radical departure from Tennessee and Federal precedent in Hannan and in Martin v. Norfolk Southern Railway Company will make it more difficult--much more difficult, to avoid the time and expense of unnecessary trials--i.e., to have frivolous lawsuits dismissed.

If you are interested in a full legal analysis of the case, I'd recommend this insightful article from the Tennessee Bar Journal, but a quick list of Hannan's consequences are that (a) lawyers will file more expansive (onerous) discovery requests, (b) lawyers will litigate more frequent (and arguably more necessary) motions to compel party opponents to hand over information, (c) lawsuits will be dragged out longer, and (d) lawyers will file a higher number of frivolous lawsuits. Wow.

To put it mildly, this errant ruling is far from a high point in the history of Tennessee jurisprudence. But what should we expect? It doesn't take a brain surgeon to figure out that we'll have decisions like this as long as special lawyer's groups control the process of selecting Supreme Court judges.



Let us know what you think . . .

When negotiating with hostage-takers . . .

I never saw Mel Gibson's Ransom when it was in theaters, but the movie came to mind as I contemplated the struggle over judicial selection in the state Capitol.

State lawmakers who purport to oppose having an unconstitutional system for selecting judges are worrying about what may happen if they sunset the "Tennessee Plan" without providing for a seamless transition or a soft landing or (insert preferred, hackneyed metaphor here). To be clear, I like most of these legislators, and I don't want to get them cross with me, but it appears that they are looking for a compromise for fear of aggravating the Lawyers Lobby.

If you're like me, you bristle at the thought of being forced to negotiate with a hostage-taker, you know, like Mel Gibson's character in Ransom. And in the debate over whether to renew the lawyer-controlled "Tennessee Plan," too many legislators are falling over themselves to strike a deal with those who've taken hostage our system of picking judges. One legislator recently was quoted as saying:

"“The Constitution of Tennessee means what it says,” . . . “Article VI, Sec. 3, states, ‘(t)he Judges of the Supreme Court shall be elected by the qualified voters of the State.’ So it is also with the election of judges of the ‘inferior’ courts. If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”

. . . until then, the General Assembly must agree upon the means by “which we shall transition from the plan we have to the plan we must have” to assure that the administration of justice is done properly."

This is some legislators' rationale for reaching a compromise with the Lawyers Lobby . . . a compromise that is sure to preserve commission-based selection of judges.

The Lawyers Lobby is warning of falling skies and chaos if the "Tennessee Plan" is not renewed, but I'm inclined to view these hostage-takers like the guys who mistakenly nabbed Mel Gibson's son in Ransom (see above). And, to be honest, I'm not even sure there's a bona fide dilemma here.

The sky will not fall if the "Tennessee Plan" is sunset. Yes, the Lawyers Lobby will don sackcloth and ashes. And you can bet your buttons there will be litigation (we're stirring up a hornet's nest full of lawyers, after all). But there's an entire legislative session (and more than a year) between now and the next bi-ennial election for judges. And there are five sessions between now and the next election for full judicial terms. That will be plenty of time--for legislators sufficiently motivated, to come up with any necessary "transition" to a Constitutional system. Heck, they could repeal the entire "Tennessee Plan" if they wanted to.

Maybe lawmakers should rent Ransom. We don't need to let these guys bully us.

Cool quote

Some legislators are fretting over this or that naysayer's opinion about sunsetting our current system for judicial selection (the "Tennessee Plan"). I liked this quote that I came across today:

I am looking for a lot of men who have an infinite capacity to not know what can't be done.--Henry Ford

H/T: 48days.com

What rule of law is . . .

In recent months a couple of references to "rule of law" have caught my attention . . . these constructions of the phrase may sound sort of right, but they miss the mark. In particular, the Tennessee Bar Association (TBA) has been throwing the term around quite a bit.

Here's one example, which I read today in the Tennessee Bar Journal, in an article written by TBA President, Buck Lewis in listing some of the "core values that should bind all lawyers together":

A belief in the rule of law--the notion that no one is above the law and that the law should be applied the same to the least of these as it is to those with power and influence.

Though Lewis' populist-sounding construction of the phrase is certainly a worthwhile value, (and who can argue with a Biblical allusion!?!) it demonstrates a superficial understanding of the term and of the historical significance of a departure from rule by kings or any other authoritarian rule.

Indeed, "rule of law" is actually best understood by considering its opposite condition, which is "rule of man." In sum, "rule of law" means that we as citizens are subject to laws, not individual persons; thus it doesn't matter who is doing the judging (or acting as the executive).

It doesn't surprise me that Lewis has a skewed understanding of "rule of law," given his and the TBA's fierce advocacy for the "Tennessee Plan" . . . a judicial selection system that (a) violates Tennessee's Constitutional requirement that supreme court justices (and "inferior" courts such as the intermediate appellate courts) be elected; (b) practically guarantees that "living constitution" devotees will end up on the court and (c) insulates activist judges from accountability.

Tennessee's current system of judicial selection practically insures life tenure on the courts. And as long as "men" are unaccountable for their actions as judges, we can expect to live under rule of men rather than rule of law.

Last, but not least . . .

This, from all the way below the fold in yesterday's Commercial Appeal reporting on the upcoming session of the TN General Assembly ( "Money, economy cloud Tennessee legislature's session" -- Memphis Commercial Appeal):

"Judicial selection: The 'Tennessee Plan' for the selection of Tennessee Supreme Court justices expires July 1. Some conservative groups want to return to straight elections of the five high-court judges. At the least, Republican leaders want to change the appointment process of members of the Judicial Selection Commission, which nominates Supreme Court judges to the governor."

And the Lawyers Lobby likes things just the way they are . . . no accountability and no transparency.

On Mumpower's mind . . . maybe on his agenda

From reading this article, (Mumpower details GOP agenda | www.tennessean.com) it is comforting to see that GOP leaders appreciate the significance of judicial selection, but I see too much equivocation to believe they actually will abide by the Constitutional requirement for contested elections. Incidentally, the article by Theo Emery is one of the best on the issue that I've read:

Judicial selection has been a perennial issue in Tennessee. Though the state constitution requires election of judges, the so-called "Tennessee Plan" from the 1970s created the Judicial Selection Commission, which reviews qualifications of potential judges, then recommends a slate from which the governor chooses. Judges then maintain their seats through retention elections.

Most appointments to the commission are limited to candidates from lists provided by a range of legal groups, a provision that many Republicans and constitutionalists say have made the bench more liberal.

Last session, Lt. Gov. Ron Ramsey proposed changes to the system intended to loosen the requirements for the commission membership, but there was no action on the plan by the end of session.

The commission is in a twilight status called "wind-down," which means the entire selection system will disappear after June 30 if the General Assembly doesn't revamp or renew the commission.

If Tennessee dropped its current selection process, it would be the first state to revert to electing all of its judges.