Tennessee: House & Senate trying to agree on how to confirm appellate judges- “points” system? Majority of chamber? Majority of quorum? One chamber veto?

Last fall voters in Tennessee approved Amendment 2, changing the way the state’s appellate judges are selected. The language of the new constitutional amendment provides

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature…The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

If the legislature takes no action on a nomination within a set number of days, the person is confirmed by default.

The question then became how, precisely, would a judge be “confirmed by the Legislature”? Could one chamber of the legislature simply refuse to vote on a nominee, or vote to reject a nominee, and thereby kill the nomination? And was it necessary to have a majority of a chamber or just those present?

These questions were the basis for debate of two sets of legislation this year (HB 142 /SB 1 and HB 792/SB 698). Of these, SB 1 and HB 241 have advanced the furthest.

HB 142/SB 1

As introduced, confirmation would only have occurred if both the House and Senate approved; if the chambers did nothing within 60 days the person would have been confirmed by default. It also included a 1-chamber veto plan that would have allowed rejection by a single chamber to scuttle the appointee.

If either the senate or the house of representatives votes to reject the governor’s judicial appointee within the sixty-day period during which the appointee must be confirmed or rejected, then the appointee is rejected by the general assembly regardless of whether the other body has voted on the question.

That single chamber veto plan was amended out by the Senate Judiciary Committee on April 8. Instead a new provision was put in place that also required a majority of all those members to which the chamber was entitled (rather than simply a quorum).

…the general assembly shall meet in joint session for the purpose of voting either to confirm or to reject the governor’s appointee. The votes of each house shall be made and tabulated separately. The governor’s appointee shall be confirmed if both houses vote to confirm the appointee by a majority of all the members to which each house is entitled and shall be rejected if both houses vote to reject the appointee by a majority of all the members to which each house is entitled. If a vote results in any other outcome, then no action is taken and both houses may vote again to confirm or reject, subject to §17-4-103(b)
Thus a person would need to obtain 49 House members (chamber is “entitled” to 99) and 17 Senators (chamber is “entitled” to 33).
A further floor amendment kept the same language and was approved 30-1 by the full Senate on April 16.
The House version, is the subject of a pending amendment that repeats the Senate’s language, including the “all members” provision, but leaves out the last sentence about what occurs if the houses split (i.e. “no action”).
Moreover, an alternative “points” system amendment has been introduced.  Each member of the House would receive 1 point (for a total of 99), each Senator 3 (for a total of 99). Each member of the House and Senate would then vote “confirm”, “reject” or “present but not voting”. A nominee would need to receive 100 “confirm” points to be confirmed. 100 “reject” points would result in rejection by the general assembly. Anything else would be deemed to be “no action.” These amendments could come up today (April 20) on the House floor.

HB 792/SB 698

The House version as amended also dropped the one chamber veto but provided for obtaining a majority of the House and Senate separately of each house’s members who are present and voting and not “all members” of the chambers. HB 792 was approved by a subcommittee of the House Civil Justice Committee on March 25, the full Civil Justice committee on March 31, and a subcommittee of the House Finance, Ways & Means Committee on April 8 but appears to have stalled at that point.

The Senate as amended, repeats the language of SB 1 as amended including the “all members” provision, but leaves out the last sentence about what occurs if the houses split (i.e. “no action”). Approved by the Senate Judiciary Committee April 8, it appears to have stalled out in favor of SB 1.

 

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