Tennessee: House rejects Senate appellate confirmation plan 92-1, but both chambers OK plan to create merit selection for trial court vacancies

Last year Tennessee voters amended their state constitution to create a quasi-federal system for appointment of appellate judges. The implementing legislation remains hotly contested for appellate confirmation, however, there is agreement on the creation of a merit selection system for interim vacancies on the state’s trial courts.

At the appellate confirmation level the question has been what the phrase “shall be confirmed by the Legislature” means. Can one chamber vote to confirm, the other refuse, and thus kill the nomination? Or would a split vote simply result in no action? Is it a joint vote of the entire legislature, or chamber by chamber?

The Senate version of SB 1 provides for a majority vote of all members of each chamber to which the house is entitled (not just those present) and that the votes would be tabulated separately. The bodies would, in effect, operate independently of each other.

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.

The Senate approved its version 30-1 on April 16.

The House version of SB 1 does not include separate tabulation and speaks of a joint vote of all members to which the general assembly is entitled.

The appointee shall be confirmed or rejected by joint vote of both houses of the general assembly. A majority of votes, to which the general assembly is entitled, cast in the affirmative shall confirm the appointee. A majority of votes, to which the general assembly is entitled, cast in the negative shall reject the appointee.

If nothing happens, or if the chambers split, the person becomes confirmed by default under a constitutional provision that requires rejection or confirmation within 60 days (in session appointments) or 60 days from the start of the next annual session (out of session appointments). House members argued that under the Senate plan, 17 Senators (a majority of the Senate) could vote to confirm, the rest of the Senate plus the entire House could vote to reject, and the person would eventually become confirmed by default.

The vote on the House version of SB 1 was 92-1. The Senate declined to accept SB 1 as amended by the House and a conference committee has been appointed.

One area where both the House and Senate do seem to have agreement on is the creation of a merit selection commission to fill interim vacancies in the state’s trial courts of record. The new Trial Court Vacancy Commission would be made up of 11 members: 5 chosen by the House Speaker, 5 by the Senate Speaker, and 1 jointly. At least 7 of the 11 members would be attorneys (3 House Speaker, 3 Senate Speaker, 1 joint). The Commission would go to work where a vacancy occurred or “is impending” in a court of record due to death, resignation, retirement, or otherwise. The governor would be required to appoint a person from a 3-name list provided by the Commission; the governor could request a second list to bring that total up to 6 names. The Commission’s votes would be by anonymous written ballots. The judge appointed would still have to face voters in the next election to fill the remainder of the unexpired term or for a complete term.