Tennesseans may have thought that they'd solved the question of judicial confirmation back in 2014, when a constitutional amendment to clarify how the state's appellate judges were appointed passed easily.
The amendment, co-sponsored by state Senator Brian Kelsey (R-Germantown) and state Representative Jon Lundberg (R-Bristol), abandoned what had been a judicial nominating commission on the front end and added the important proviso of legislative approval or rejection on the back end. The middle process, by which state appellate judges would be appointed by the governor, remained in place.
Although the constitutional amendment seemingly established a process similar to that by which federal judges are appointed — in that case, presidential appointment, followed by Senate confirmation — and was partly sold to the state's voters that way, the real point of the change was to give the legislature final say over appointments.
In Tennessee's system, state trial judges are elected directly by the people, as mandated by the state constitution, and controversy had raged for years about whether appeals court judges should be named by the same process. Besides establishing the principle of legislative control, the 2014 constitutional amendment would seem to have resolved that issue.
Left unresolved was a newly created conundrum: What exactly does legislative confirmation mean in a bicameral legislature? Should the two chambers — the state Senate and the state House vote as a collective body (in special session, as it were) on approving a gubernatorial selection? Or should each chamber vote separately? And, if the latter, what happens if one chamber votes yes and the other chamber votes no on an appellate judge's appointment?
Lo and behold, the two chambers don't agree on the point. The Republican Party may have an unbreakable monopoly (i.e., super-majority) in the General Assembly, with majorities in both chambers that cannot mathematically be offset by the small Democratic remnants in each body, but human nature, which abhors a perfect concordance, occasionally asserts itself in wrangles between Senate and House, each of which is jealous of its own power.
So it is that one of the first agenda items for the just reconvened General Assembly to resolve is the effective meaning of "legislative confirmation" as it applies to the 2014 constitutional amendment on selection of appellate judges.
And the issue is hardly moot. In September, state Supreme Court Justice Gary Wade retired, leaving Tennessee's ultimate judicial tribunal one member short of its five-member quota. Governor Bill Haslam has appointed Court of Criminal Appeals Judge Roger Page to fill the vacancy, but Page cannot take his seat on the court until his appointment receives legislative confirmation — whatever that turns out to mean.
There is a fail-safe in the process. If the legislature remains in session 60 days without producing either a yes vote or a no vote on Page, the state constitution allows him to be confirmed by default. But nobody wants that to be the endgame. It would leave the conundrum unresolved, with other judicial appointments sure to come before the legislature in the relatively near future.
And such a conclusion would leave the legislature as such looking ineffectual in the process — a direct contradiction of the intent of the constitutional amendment.
And, as Ed Cromer of The Tennessee Journal has noted in a definitive article on the controversy, reliance on the 60-day default process would inevitably lead to possible accusations of "stalling" by one chamber against another or even to the enabling of questionable appointments by some future "bad actor" governor.
The onus is on the General Assembly to resolve the matter as soon as possible in the current legislative session.
An effort was made to break the impasse last spring, in a compromise proposal drafted by Senate-House conferees calling for judicial-confirmation votes to be achieved by votes of the two chambers sitting together, with a majority of the entire General Assembly — 67 votes — needing to be achieved.
That plan was rejected in the Senate, where it got only four of the body's 33 votes and was condemned by the Senate Majority Leader Mark Norris (R-Collierville) as threatening "the end of the bicameral legislature."
Both Norris and Kelsey are members of a 10-member committee (seven Republicans, three Democrats) assembled for the current session and charged with coming up with a new solution. The committee's first draft, last week, called for separate confirmation votes by House and Senate, with a split decision resulting in a nominee's rejection. Since both Haslam and the Tennessee Bar Association immediately expressed their opposition to this plan, other formulas and drafts are due to be considered by the committee this week, with deliberations starting on Tuesday.
Besides the urgent matter of filling out the state Supreme Court to its full complement, there are numerous other ramifications that would seemingly call for an immediate solution — including the fact that, while the constitutional amendment may have strengthened the legislature's hand on the back end of judicial selection, it weakened it on the front end by allowing the expiration of what had been a built-in legislative screening process prior to the governor's naming a candidate for an appellate position.
That's what you might call an "unintended consequence," one of many that may have been packed into last year's much ballyhooed constitutional amendment process.