I mentioned last week the stacks and stacks of legislation in Tennessee to extend, end, alter, etc. the state’s merit selection system for appellate judges. There was also as previously note the apparent advance of numerous different formulations of legislation, some of which have now been put to the side.
Extending current merit selection past 2012
The current merit selection system, which relies on a judicial nominating commission (for initial appointment) and a judicial performance evaluation commission (for retention election-year review), is set to sunset June 2012.
Efforts to extend it to 2013 or 2014 have been introduced, however so far only the portions related to the judicial performance evaluation commission have advanced. HB 2537 was approved in the House Government Operations Committee April 11 and is on the House floor calendar for April 18. In the Senate SB 2345 is up for a vote in the Senate Government Operations Committee April 18.
Put merit selection explicitly in the constitution
HJR 830 is relatively spartan in terms of details. It was approved by the House Finance, Ways, and Means General Subcommittee on April 11 and is set for a vote today (April 17) by the full committee.
As an alternative to contested elections, the Legislature is authorized to establish, by law, a system of merit-based appointments with retention elections
for the judges of the Supreme Court and for the judges of the intermediate appellate courts.
SJR 183 uses the same language as HJR 830. It was approved yesterday (April 16) but not after several amendment attempts.
- Amendments SA0368 and SA 1166 would have provided for merit selection “with or without retention elections” (amendment underlined). Both were withdrawn.
- Amendment SA 1176 would have scraped the language entirely, ended merit selection, and provided for a quasi-federal system of gubernatorial appointment with legislative confirmation and contested elections. That amendment failed on April 12 on a 15-16-1 vote.
SJR 710 also proposes a quasi-federal system with nomination entirely at the discretion of the governor (i.e. no merit selection commissions) but unlike amendment SA 1176 to SJR 183, it would provide for retention elections rather than contested ones. Moreover, confirmation would automatically occur if the legislature failed to reject a nominee, a concern that as I noted previously senators had especially in light of delays in confirmation of federal judges.
Key to SJR 710 is the particular language used, especially the word “merit”, with the latest version eliminating the word entirely (underline added)
- As introduced: Each judge of the Supreme Court or any intermediate appellate court shall be initially selected via merit-based gubernatorial appointment from a panel of qualified candidates submitted by a nominating commission; shall be legislatively confirmed; and, thereafter, contingent upon a satisfactory job performance evaluation, shall be subject to retention election by the qualified voters of the state.
- Amendment SA 1111 (withdrawn): Each Judge of the Supreme Court shall be appointed by the governor based on merit and shall be confirmed by the Legislature.
- Amendment SA 1165 (adopted April 11): 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 sole discretion of the governor based on merit; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.
- Amendment SA 1168 (withdrawn): Judges of the Supreme Court or any intermediate appellate court shall be nominated for a full term or to fill a vacancy by and at the sole discretion of the governor based on merit; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state.
- Amendment SA 1232 (adopted April 16): 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; and thereafter, shall be elected in a retention election by the qualified voters of the state.
End merit selection
Language to provide for contested elections for appellate judges faced rejection in the House but fared better in the Senate. HB 173 to specifically ensconce such a system in statute failed on a 7-7 vote in the House Judiciary Committee on April 11. The Senate version (SB 127) had been approved by the Senate Judiciary Committee in 2011 but hasn’t moved since.
Also on April 11 the Senate Judiciary Committee approved SJR 635 to put contested elections for appellate judges, based on districts to be drawn by the general assembly rather than statewide, into the constitution.
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