The Tennessee legislature is starting its 2016 session picking up where the 2015 session ended with regards to judicial confirmations. As discussed here, here, and here the issue has proven very complex and a conference committee has already been appointed to try and hash out the differences (h/t TBA Today).
As a review, voters in 2014 approved Amendment 2, a constitutional amendment changing the way Tennessee appellate judges are selected. The amendment called for governors to appoint individuals to “be confirmed by the Legislature” and further provided that “confirmation by default occurs if the Legislature fails to reject an appointee” within a set time period. There were a litany of confirmation methods proposed in 2015, none of which were enacted. A conference committee appointed at the end of the 2015 failed to come up with a plan before time ran out on the session.
Several issues were at play in the various bills and amendments.
- Joint session/joint vote? One possible mechanism for confirmation would be for the 99 member House and the 33 member Senate to vote jointly. A joint vote could mean an appointee being confirmed with House-votes only; the entire Senate and most of the House could vote against and still come up with a majority of the 132 member joint session (67 House members in favor > 32 House + 33 Senate rejecting). This particular formulation was favored by the House, but the Senate rejected it.
- 1-chamber veto? If the chambers voted separately, as the Senate adopted plan called for last session, would both chambers have to vote “no” to reject an appointee? Would rejection by 1-chamber be enough to scuttle the appointee? A 1-chamber veto could mean a simple majority (17) of the Senate rejecting an appointee favored by the rest of the Senate (16) and the entire House (99).
- 1-chamber stall? Recall that confirmation by default occurs if the “Legislature fails to reject”. Under this scenario even if one chamber unanimously voted “no” on an appointee, the other chamber could simply not take a vote, let the clock run out, and the appointee would be confirmed by default. In a reverse of the 1-chamber veto, the 1-chamber stall could mean 17 senators stalling out 99 House members + 16 other members of the Senate who want to reject an appointee. The House balked on this point in particular.
- Majority of chamber or all members? Would a “yes” vote require a majority of all members of the chamber present, or “all the members to which each house is entitled”?