Tennessee amendment may bring greater checks and balances

Posted: Sep 01, 2014 5:00 AM
Tennessee amendment may bring greater checks and balances

By Chris Butler | Tennessee Watchdog

NASHVILLE — The only way now to get on the Tennessee Supreme Court is through the governor or, eight years later, the voters in a retention election.

But if a constitutional amendment on the ballot, known as Amendment 2, passes in November, certain things will remain the same, but other things will change.

The most major tweak — state legislators will have more of a say over who gets on the court, supporters say.

And that, they add, will provide for more checks and balances and also keep special interest groups from having too great an influence over who sits on the court.

“The governor can have his own merit selection process and then it will go to the Legislature for review,” said Nashville attorney Lee Barfield, who supports Amendment 2.

Photo by Chris Butler

Lee Barfield

“Interest groups can have a right to come in and say what they need to say during that process.”

Some in Tennessee have said interest groups have too great of an influence in trying to sway voters in retention elections.

As Tennessee Watchdog reported, Tennessee political legend and former Democratic gubernatorial nominee John Hay Hooker passionately opposes Amendment 2.

Hooker opposes it on the grounds that it goes against the state constitution, as written in 1870, which calls for the direct election of appellate court judges.

If Amendment 2 passes, legislators will have 60 days to approve an appellate court judge nominee. If they don’t act within those 60 days, the nominee serves anyway.

“It’s better than the federal system,” Barfield said.

“You don’t have the trade-offs where legislators say to the executive branch that we will hold up an appointment until you’ve done certain things.”

Under Amendment 2, the system will weed out the heavily partisan, Barfield said.

After serving an eight year-term, the judges, as they do now, could only seek another term through a retention election by voters, similar to what happened last month.

According to Hooker’s interpretation, the state constitution clearly specifies voters always elect the justices — and says nothing about the governor appointing them.

Justin Owen, president of the free market think tank Beacon Center of Tennessee, which supports Amendment 2 along with a variety of other groups, doesn’t dispute how Hooker reads the state constitution.

Photo by Chris Butler

Justin Owen

“This will change the constitution. This is a legal question that has been debated hotly over the last 40 years,” Owen


Furthermore, through this process, by voting, Tennessee residents can impose their own checks and balances on their own representatives, who approve or disapprove these judges.

“If they still don’t like what those judges are doing then they can fire them at the end of their eight-year term,” Owen said.

“This process provides even greater accountability than even merit selection or direct elections because you have a consistent impact over those who are placing judges on the bench.”

Owen said the model Amendment 2 proposes is similar to the federal model, with at least one big improvement.

“If it worked for Thomas Jefferson then it works for me, and if you look at what Jefferson said on this issue, he supports the federal model,” Owen said.

“The only thing he expressed concern about was life tenure.”

Contact Christopher Butler at chris@tennesseewatchdog.org 

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