Tennessee Judicial Selection, Amendment 2 (2014)
|Referred by:||Tennessee State Legislature|
|Status:||On the ballot|
- 1 Text of measure
- 2 Background
- 3 Support
- 4 Opposition
- 5 Controversies
- 6 Path to the ballot
- 7 See also
- 8 External links
- 9 Additional reading
- 10 References
The measure, upon voter approval, would empower the governor to appoint judges to the supreme court or any other state appellate courts subject to confirmation by the general assembly. The appointed judge would serve an eight-year term. Thereafter, the judge could serve another term via a retention election by voters.
The measure would largely constitutionalize the state's current system, but would dismantle the Judicial Nominating Commission and empower the legislature to confirm or reject appointments. This proposed process mirrors how federal judges are selected. Section 3 of Article VI of the Tennessee Constitution currently reads, "The judges of the Supreme Court shall be elected by the qualified voters of the state." However, the state has used a merit-selection system since 1994.
Text of measure
The official ballot text reads as follows:
|“|| Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:
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. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.
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|“||ESTIMATED FISCAL IMPACT:
- See also: Judicial selection in Tennessee
The Tennessee Constitution states, “The judges of the Supreme Court shall be elected by the qualified voters of the state.” Since 1971, however, the state has had a merit-selection process for judiciaries. Since 1994, the Judicial Selection Committee has selected nominees for appellate courts. The governor then selects judges from those nominees, and constituents vote whether or not to retain them. This arrangement has been known as the "Tennessee Plan." Amendment 2 would dismantle the Judicial Selection Committee. The proposed arrangement is known as the "Modified Federal Plan."
The organization leading the campaign in support of the initiative is Vote Yes on 2.
The measure was sponsored in the legislature by Sen. Brian Kelsey (R-31) and Rep. Jon Lundberg (R-1).
- Former Gov. Phil Bredesen (D)
- Former U.S. Sen. Fred Thompson (R)
- Former U.S. Attorney General Alberto Gonzales (R)
- Tennessee Bar Association
- Tennessee Chamber of Commerce & Industry
- Tennessee Business Roundtable
- Tennessee Farm Bureau Federation
- Beacon Center of Tennessee
- Tennessee AFL-CIO Labor Council
- Tennessee Business Partnership
- Tennessee Bankers Association
- Fraternal Order of Police, Tennessee
- Women’s Political Collaborative
- Tennessee Hospital Association
- Greater Memphis Chamber
- League of Women Voters
- Memphis Bar Association
- Nashville Bar Association
- Rutherford County Chamber of Commerce
- Kingsport Chamber of Commerce
- Nashville Area Chamber of Commerce
- Knoxville Chamber
- Chattanooga Area Chamber
- Chattanooga Bar Association
Vote Yes on 2 video ad advocating for Amendment 2.
Former Gov. Phil Bredesen (D) and former U.S. Sen. Fred Thompson (R) co-wrote an op-ed outlining supporting arguments for Amendment 2:
- “A stable and impartial judiciary is vitally important to all of us. But in recent years, there have been numerous legal challenges to the way we in Tennessee select our appellate court judges. These continuing challenges, and the confusion they create, threaten to destabilize and weaken our judiciary and our state.”
- “Passing Amendment #2 will put an end to the questions and will help ensure we get the most qualified, diverse, fair and impartial judges that Tennesseans want and deserve.”
- "Amendment #2 gives Tennesseans three powerful votes in the selection of our appellate judges:
- By voting for the governor, who will make the appointments.
- By voting for our state senators and representatives, who will confirm or reject the appointments.
- By voting to keep or fire the judges at the end of their respective terms."
- "Passing Amendment #2 will help keep the influence of special interest money away from our judges and out of our state."
Other arguments in favor of the amendment include:
- Former Gov. Phil Bredesen (D) argued that contested elections for the judiciary would allow special and financial interests to become involved. He said, “Suddenly you get at the last minute somebody on there who’s promised to, I don’t know, stop all abortions or something like that. You get just a lot of outside money coming into elections. You can do that to a governor or to a congressman, but I think it’s particularly effective and dangerous with races that people are generally not interested in.”
- Sen. Brian Kelsey (R-31) suggested the nation’s founding figures developed a similar plan to the one proposed. He noted, “The people of Tennessee are not presently voting for judges in open contested elections. And the people of Tennessee have never been asked whether or not they favor following the judicial selection plan that our founding fathers of the U.S. Constitution came up with. Let’s give them the chance to vote on that.”
| Total campaign cash |
as of June 30, 2014
As of June 30, 2014, Vote Yes on 2 has received $403,501 in contributions.
|PAC||Amount raised||Amount spent|
|Vote Yes on 2||$403,501||$52,582|
Top 5 contributors:
|Tennessee Business Partnership||$175,000|
|BB&S Good Government||$75,000|
|Waller Lansden Dortch & Davis LLP||$75,000|
|Backer, Donelson, Bearman, Caldwell & Berkowitz||$50,000|
|Neal & Harwell, PLLC||$20,000|
The campaign in opposition to the amendment is being led by Vote No on 2.
- John Jay Hooker (D)
John Jay Hooker (D), described as a "political legend" by Tennessee Watchdog, called the amendment "a political ploy." He elaborated:
|“||The state constitution says that judges shall be elected by the qualified voters. It’s pretty hard to misunderstand that language.
My view is that the retention election statute is unconstitutional, blatantly on its face and that the judges who sit on the Court of Appeals and the Supreme Court know it, yet they sit there anyway...
There is no way to read the state Constitution to mean that the Legislature has the authority to say they shall be appointed by the governor. 
—John Jay Hooker, 
Other arguments against the amendment include:
- Bret Brandenburg, executive director of Justice at Stake, stated, “It is troubling that Tennessee legislators are pursuing a constitutional amendment that would inject partisan politics into the state’s judicial selection process. For many years, Tennesseans have benefited from a process for picking judges that focuses on qualifications, not partisan politics. SJR 02 would replace the highly regarded ‘Tennessee Plan’ with a Washington-style system that gives the Governor unilateral authority to pick judges, and subjects confirmations to DC-style gridlock and backroom deals.”
Ramsey's involvement in retentions
- See also: Tennessee Supreme Court elections, 2014
Ramsey also played an active role in opposing the retention of three Tennessee Supreme Court judges in the primary election on August 7, 2014. He argued in interviews with local media that voters have the right to vote yes or no for retention, though he hopes to see Cornelia Clark, Gary R. Wade and Sharon Lee out of office. Clark, Wade and Lee were appointed by former Democratic Gov. Phil Bredesen. Since the current governor, Bill Haslam, is a Republican, Ramsey saw a greater likelihood that Haslam would appoint members of his own party to fill seats on the court.
Since Amendment 2 supporters, like Haslam and Ramsey, argue that the constitutional change will keep politics out of judicial selections, Gov. Haslam expressed concern that Ramsey's involvement in the retention elections could "muddy the waters for Amendment 2."
In an interview with Nashville Scene, Ramsey argued that his anti-retention stance in the supreme court race legitimates the retention election process, rather than discouraging support for Amendment 2:
Q: The governor yesterday say [sic] he is worried that the campaign to defeat the three incumbent justices might “muddy the waters,” his words, on his “Yes on 2” campaign. You disagree, presumably?
RAMSEY: I have not talked to the governor about this but I cannot connect the dots on that one. If anything, if we have a true election — as the supreme court has said retention elections are and the people get the right to either retain or not retain — that legitimizes the retention election process. And in my opinion, in the end, will actually help the amendment pass, not hurt the amendment. I cannot understand any argument where it actually hurts it. I don’t. Now, I have not talked to the governor about this. I read it in the news accounts, and I will, I just haven’t had a chance yet. But I cannot understand that argument at all.
—Lt. Gov. Ron Ramsey, 
Ramsey's political action committee spent over $400,000 trying to oust the three judges. Nonetheless, all three were retained by voters on election day.
Path to the ballot
- See also: Amending the Tennessee Constitution
The Tennessee General Assembly was required to approve the amendment in two successive sessions. In the first session, the measure required a simple majority for approval. In the second session, the proposed amendment needed to earn a two-thirds vote for approval. SJR 2 was approved by the Tennessee Senate for a second time on February 21, 2013. SJR 2 was approved by the Tennessee House of Representatives for a second time on March 11, 2013.
February 21, 2013 Senate vote
|Tennessee SJR 2 Senate Vote|
March 11, 2013 House vote
|Tennessee SJR 2 House Vote|
- The Tribune, "Panel that evaluates state's appellate judges often works outside public view," March 15, 2014
- Tennessee General Assembly, "Bill Information for SJR0002," accessed January 23, 2014
- WUOT, "Haslam Won't Join Campaign To Defeat Tennessee Supreme Court Justices," May 9, 2014
- The Columbia Daily Herald, "Tennesseans to vote on abortion, tax and judicial selection amendments," January 5, 2014
- KnoxNews, "House approves referendum on appointing judges, agrees to cut per diem," March 12, 2013
- Tennessee Secretary of State, "Proposed Constitutional Amendment No. 2 for the November 4, 2014 General Election Ballot," accessed June 12, 2014
- Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
- Tennessee Legislature, "Senate Joint Resolution 2," accessed January 23, 2014
- Tennessee General Assembly Fiscal Review Committee, "SJR 2 Fiscal Note," accessed April 16, 2014
- 'Nashville Post, "Bredesen, Slatery ask biz community to support appellate judge selection amendment," January 15, 2014
- Vote Yes on 2, "Homepage," accessed July 25, 2014
- The Tennessean, "Haslam, Bredesen join forces to preserve TN's judicial selection process," January 21, 2014
- The Tennessean, "Vote Yes on 2 is best path for judicial selection," April 29, 2014
- Knoxville News Sentinel, "Political notebook: Alexander backs proposed amendments on Tennessee ballot," July 21, 2014
- The Republic, "Newly installed Tennessee Supreme Court justice to campaign for constitutional amendment," August 14, 2014
- Nashville Public Radio, "Judicial Selection May Be The One Thing These Tennessee Politicos Agree On," accessed April 30, 2014
- The Commercial Appeal, "Campaign for judicial constitutional amendment goes public Tuesday," April 28, 2014
- Knoxville Daily Sun, "Tennessee Bar Association backs constitutional amendment on judicial election," November 16, 2014
- Vote Yes on 2, "Endorsing Organizations," accessed July 25, 2014
- Nashville City Paper, "Senate OKs amending state constitution to change how judges are selected," February 21, 2013
- Tennessee Bureau of Ethics and Campaign Finance, "Registered Referendum Committee," accessed August 4, 2014
- Tom Humphrey’s Humphrey on the Hill, "Group formed to oppose constitutional amendment on judicial selection," July 10, 2014
- Tennessee Watchdog, "TN political legend calls retention election a ‘political ploy,’ focused on Amendment 2," July 30, 2014
- WatchDog.Org, "Tennessee groups fight over state elections of judges," February 4, 2014
- Justice at Stake, "JAS: Proposed Amendment to Tennessee Constitution Would Politicize Judicial Selection," accessed March 11, 2013
- InsuranceNews.net, "Tennessee Supreme Court Chief Justice Barker claims some in state GOP targeting Democrat justices," May 8, 2014
- Keep TN courts fair, "Keep Tennessee Courts Fair Campaign Gains Broad Support," accessed June 2, 2014
- The Leaf Chronicle, "Haslam: Tennessee judicial campaign could hurt amendment," May 7, 2014
- Nashville Post, "Haslam fears Supreme Court push could muddy 'Yes on 2' campaign," May 7, 2014
- Nashville Scene, "Q&A: Ron Ramsey On His Controversial Push Against Supreme Court," May 9, 2014
- The Tennessean, "Ron Ramsey fails to topple Supreme Court justices," August 8, 2014
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