Flyer InteractiveEditorial

Yes to the Tennessee Plan

Along with the 26 state appellate judges who just stood for (and passed) a retention election, there was one other candidate that might have been regarded as standing for a Yes/No vote, too. This was the Tennessee Plan itself – the election formula first proposed for appellate judges in the 1970s and amended by the legislature four years ago to include the five members of the state Supreme Court. On the strength of how it seems to have worked out on this year’s August 6th election ballot, we’re happy to vote Yes on the plan.

The Tennessee Plan – a modified form of the nationally better-known Missouri Plan – was conceived of as a way of making the state’s judiciary both responsive to the electorate and independent enough to be objective in its judgments. It left untouched the process of direct competitive election for trial judges. And while it afforded a degree of electoral distance for appellate court judges, it also made them liable to the public at several different levels.

Prospective appellate judges are nominated by a state Judicial Selection Commission, made up of representatives of bar associations, prosecutors, defense counsels, and other members of the legal community. For any appellate position, the commission will nominate a maximum of three names to the governor, who is free to appoint one of these or to ask for the deck to be reshuffled and that he be given a different trio to choose from.

Once appointed, a state appellate judge serves an eight-year term, at the end of which he or she is subject to a statewide Yes/No vote. (If, that is, the judge is passed upon favorably by the state Judicial Evaluation Commission, another diversified body charged with grading the judges’ performance; if this commission turns thumbs down, the appellate judge must stand for direct competitive election or surrender the office.) Judges who fill vacancies are subject to the evaluation/retention process during the next regularly scheduled statewide election.

When Supreme Court Justice Penny White was turned out of office two years ago – mainly because of her prior judicial rulings against imposing the death penalty – some observers feared that the Yes/No retention process lent itself to political manipulation. Senior elected officials like Governor Don Sundquist and U.S. Senator Fred Thompson took a stand against her, as did the Tennessee Republican Party and a number of conservative lobbies.

Superficially, it appeared that the same fate might this year await Justice A.A. Birch, who had authored the death-penalty reversal opinion for which White, who concurred in it, had been most pilloried. But no major politician intervened against Birch, the opposition to him was relatively restrained, and he survived. Birch and the other 25 appellate judges subject to Yes/No in 1998 were all returned, in fact, by an average positive vote of 70 percent.

Inconsistency? We think not. Birch’s record as a trial and appellate judge proved, on examination, to be both diverse and thoughtful on death-penalty questions. The voters either knew this or sensed it, and they found no good reason to second-guess him.

We are not saying that it was right to have voted out Penny White in 1996. We are saying, however, that the Tennessee Plan has proved to be anything but an instrument of vigilante action. On balance, it has served the purpose of responsible – and responsive – justice.

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