Attorney John Jay Hooker has been on a crusade against Tennessee’s method of selecting appeals judges for more than two decades. Credit: Bobby Allyn/WPLN
Tennesseans will be looking at four Amendments on voting screens this election. The second one down deals with the state’s 29 appeals judges. These judges have the final say on everything from custody battles to whether to send someone to death row. The issue is over how those judges are selected, and it raises two questions: Should we slightly tweak the way we do it now, or leave it alone and set the stage to radically reform it?
Let’s break down how the process works now: When there’s an appeals court opening, a committee recommends three candidates to the governor. The governor chooses one of them. That judge is then up for a “yes” or “no” vote from Tennesseans every eight years.
What will Amendment 2 amend about that process? It scraps the committee. Instead, the governor himself will choose the nominee, so it gives the governor more power. The amendment also requires that state lawmakers confirm that nominee. The up or down vote from Tennessee every eight years — the retention election — stays the same.
The number of business groups supporting the amendment is legion.
“In recent years, there have been numerous, and I emphasize, numerous, legal challenges to the way we select our appellate court judges in Tennessee,” Governor Bill Haslam said at a recent event. “These continuing challenges, and the confusion that they create, threaten to destabilize and weaken our judiciary.”
That’s the thrust Amendment 2 believers’ position: It’ll make the judicial branch more stable, meaning fewer lawsuits, less squabbling in the state legislature, and so forth.
Quoting The Constitution
Those challenges Haslam mentions? They arise from activists who say voters – not the governor – should be picking appeals judges. It even says so plainly in the state constitution.
Appeals judges, as attorney John Jay Hooker has been saying for decades, “shall be elected by the qualified voters of the state,” a quote from the Tennessee constitution, which the amendment seeks to delete and replace.
The 84-year-old Hooker, a self-professed champion of the people, always carries a well-worn copy of Tennessee’s founding document in his back pocket. For more than twenty years, he’s been suing state officials over judge appointments. He even had his law license suspended once for jamming the courts up with so-called “frivolous” lawsuits attacking the process.
“And that’s my function,” Hooker said. “To be a protester here in the twilight of my life, to try to do something that’s the right thing to do.
Hooker forced sitting justices on the state’s supreme court to step down from one of his challenges. He contended that they were part of the system he was trying to upend — so their assessment would be biased, he argued.
A copy of John Jay Hooker’s state constitution in which he has long been scribbling. Credit: Bobby Allyn/WPLN
But the special court, made up of judges and lawyers who’ve never been appointed, came to the same conclusion that every court has: asking voters every eight years to replace or retain judges indeed satisfies the language in the constitution.
And that goes to the heart of why Tennessee has this selection process. The Tennessee Bar Association, the Farm Bureau, the Chamber of Commerce and others support it for this belief. It’s that politics are left out because judges are not constantly running for office. They say it ensures that judges don’t just become “politicians in robes,” as Sandra Day O’Connor once famously said.
John Crisp, spokesman for the Vote Yes campaign, elaborates. “They want those judges to be interpreting the Constitution, and our laws, and not susceptible to the influence of out-of-state campaign money that might’ve been used to select them.”
Activist John Avery Emison, who’s leading the Vote No charge, said that theory is feeding into a fallacy. “The glib assertion that Amendment 2 is going to keep money out and keep politics out is ridiculous.” Emison said. “We just had a demonstration by the sitting court that that doesn’t work.”
He says the fact that a combined $2.4 million was spent by both sides in the fight over replacing the three state Supreme Court seats illustrates that our current arrangement is already politicized and subject to outside money.
But Vote Yes Spokesman Crisp says think of what would happen if each one of the state’s 29 appeals judges ran in regular elections.
“Millions of more dollars spent on trying to influence the selection of those justices, including, most likely, a lot of out of state money flowing in trying to represent one interest or the other — that’s been the experience that we’ve seen in other states.”
Crisp said the “election” language in the constitution is ambiguous, and that Amendment 2 would settle it once and for all.
A Hard Sell
The last time voters were asked to enshrine the judicial selection process in the state constitution was in 1978. That year, there were 13 amendments on the ballot. The only one to lose? The one nearly identical to Amendment 2.
And here’s the most ironic thing: if voters do say no to Amendment 2, nothing changes. The current system, condemned by opponents as unfair, stays. But the door will be left open to lawsuits and legislation seeking to change Tennessee to a state where voters directly elect judges.
Yet if the amendment passes, Tennessee’s appeals courts will likely become more conservative, said Tracey George, a professor at Vanderbilt School of Law who studies judicial elections. The reason being, she said, is that Amendment 2 is nixing the nominating committee — which she characterizes as a “meaningful constraint.”
“The governor can nominate anyone the governor chooses, with the one constraint that the governor is going to pick someone who’s likely to make it through both houses of the legislature,” George said. “If we passed Amendment 2, as compared to the current system, we should expect to see more conservative judges.”
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